Miller - Blog Post 6
In “Bright Lines in Juvenile Justice,” Professor Berg explores the application of bright lines in the law, and contrasts their use with the alternative case-by-case approach. She then illustrates the use of bright lines in three Supreme Court decisions on juvenile justice, though the implications of her arguments extend far beyond that particular issue. The members of the Court that dissented in the juvenile justice cases, who argue against bright lines, assert that they are often arbitrarily placed. One example of this is that in Roper and Graham, the age of 18 was established as the bright line between juveniles and adults simply because other laws such as voting laws already used this age as a bright line. As Berg contends, this seems to be a “thin rationale” for the placement of a deeply significant line, as the association between voting age and culpability age remains ambiguous. In response to this critique, Berg argues that we should not “remove bright lines, but rather ... find a less arbitrary place at which to set them” (14). In order to do so, Berg suggests that we turn to “neuroscientific evidence about juvenile and young-adult brain development” in order to craft less arbitrary lines (17).
I think this is an interesting point when put in the context of Professor Johnson’s article, “Are Algorithms Value-Free?” which brings to light the value-laden nature of scientific pursuits. One potential issue I see arising with the reliance on science to solve issues of arbitrary bright lines is that basing bright lines on value-laden scientific research could arguably make them value-laden in and of themselves. Since many people assume scientific research is value-free, they may be wholly unaware of values that sneak into the bright lines via their scientific basis. This robs judges and citizens of the opportunity to actively consider and decide which values to incorporate into their decisions themselves, and judicial decisions may be unduly swayed by values that judges are unaware of and would not approve. Furthermore, it empowers unappointed and unaccountable scientists to make value-laden decisions that potentially powerfully shape jurisprudence.
Another potential issue I see with using science to combat the arbitrary bright line problem involves the stare decisis canon of statutory interpretation. As Berg acknowledges, stare decisis, which involves deference to past precedent in current and future jurisprudence, makes judicial decisions “sticky.” The implication of this is that if and when the Court selects a certain bright line, it sets a precedent that is likely to go unchallenged for a long time, making bright lines “sticky.” In contrast to stare decisis, science is ever-changing, with theories regularly being proposed, proved, and disproved. Problematically, if the Court selects a scientifically-informed bright line, on the basis of findings that are later disproved or altered, the sticky nature of stare decisis will make the line difficult to alter. While bright lines that are arbitrarily placed are certainly problematic, it seems that scientifically-informed bright lines come with their own set of dangers.
Comments
However, in Professor Berg's paper, "Bright Lines in Juvenile Justice," she persuasively highlights that even in ideal theory, "When we recognize the constraints this places on the ideal basic structure, we'll see that truly ideal justice is impossible." (2) In any case, an ideal theory is one that aims to outline the best set of laws and institutions that will reach the goals that a society would want to have. As such, bright lines are necessary in order to be useful for human beings, even operating under ideal theory. However, "criminal justice of any kind seems to belong to non-ideal theory, not ideal theory," which makes non-ideal theory very suitable in the context of criminal justice. So if ideal theory is not the lens to be observing issues of bright lines, then non-ideal theory would allow for the imperfections that bright lines might pose in making circumstantial, individual judgements. On the other hand, under ideal theory, bright lines are entirely necessary for such theories to be applicable to the use of human beings to offer consistency, and refrain from bias. Overall, either way of ideal or non-ideal theory, bright lines are helpful if not necessary in making moral judgements—though not a perfect answer but the closest to the ones we are willing to accept (which is upholding still innocent while proven guilty). Moreover, the brightness and applicability of/need for bright lines depends on the severity of the problem and the complexity of the potential solutions.