Guest Post: Emerging Trends: High Courts Examine the Issue of Youth Prosecuted as Adults

In light of the important juvenile law issues the Supreme Court of Ohio has been tackling, most recently whether an amenability hearing can be waived, the blog welcomes this guest post by Erin Davies.  Erin is the Public Policy Attorney at the Children’s Law Center, where her work focuses on Ohio youth under the age of 18 in the Ohio court system.  CLC recently released a report on this issue entitled Falling Through the Cracks: A New Look at Ohio Youth in the Adult Criminal Justice System.  Erin is a graduate of the The Ohio State University Michael E. Moritz College of Law.

Guest Post

Youth under the age of 18 prosecuted in the adult court have been getting much attention at all levels of the court system both in Ohio and nationally. On June 7, the Sixth Circuit Court of Appeals heard arguments in Bunch v. Smith[i], a case on the cutting edge of issues facing youth prosecuted in adult court.

In 2002, Chaz Bunch was convicted of several non-homicide felony counts committed when he was 17 years old.  Although his case began in juvenile court, Bunch was bound over to the Mahoning County adult court and was sentenced to 115 years in prison, which would later be reduced to 89 years under the Ohio Supreme Court’s sentencing decision in State v. Foster.[ii]  Since that time, Bunch’s case has been appealed through all levels of the Ohio court system, including two appeals to the Ohio Supreme Court (one remanded for sentencing under Foster, another denied for not including a substantial constitutional question).[iii]

While Bunch’s case worked its way to the Sixth Circuit Court of Appeals on habeas corpus review, the landscape around youth prosecuted in the adult system has changed significantly – and in Bunch’s favor.

 Changing Tides – U.S. Supreme Court Cases and State Legislation:

In recent years, both the U.S. Supreme Court and state legislators have begun shifting views on youth prosecuted in the adult system.  In the game-changing  Roper v. Simmons case in 2005, the U.S. Supreme Court abolished the death penalty for youth who were under 18 when their crimes were committed, based on the Eighth Amendment’s ban on cruel and unusual punishment.  Citing adolescent development and neuroscience, the Court found that youth cannot be held as culpable as adults because they “exhibit ‘a lack of maturity[,]…an underdeveloped sense of responsibility,’” are more “susceptible to negative influences and outside pressures, including peer pressure[,]” and have more potential than adults to change as they mature.[iv]  

Five years later, in 2010 in Graham v. Florida, the Court expanded the reasoning in Roper to prohibit youth under the age of 18 from receiving life without parole (LWOP) sentences.[v]  In its decision, the Court again cited adolescent development and stated that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers”.[vi]  

During the same timeframe, many states across the country also began revisiting the issue of youth prosecuted in the adult system.  Since 2005 nearly half of the states – including Ohio – have passed or considered legislation moving away from the adultification of youth, including reducing adult court sentences for youth.[vii]  These changes are based on research showing that youth prosecuted as adults are more likely to reoffend than similar youth who are retained in the juvenile justice system[viii] as well as evidence that shows how poorly youth fare in adult jails and prisons.  In adult facilities, youth face a higher risk of suicide, are in great danger of physical and sexual assaults, and often do not receive required programming, like education or mental health treatment.[ix]

In the midst of these developments, Bunch’s habeas corpus writ came to the U.S. District Court, Northern District of Ohio, where a magistrate recommended staying his petition until Graham – which the U.S. Supreme Court had heard , but not yet issued a ruling   was decided. [x]  However, in March 2010, the District court judge overruled the magistrate and dismissed Bunch’s petition before the Court’s Graham decision was issued.[xi]

 Applying Roper and Graham:

 Despite their bright line holdings, Roper and Graham left many questions unanswered. However, recent and pending cases both in the Ohio and in the federal court systems are beginning to provide some clarification.

Question One:  Does Roper and Graham reasoning apply to other forms of punishment or stages in the justice system than sentencing?  What about to youth who are kept in the juvenile justice system and not transferred to adult court?  Both the Ohio and the U.S. Supreme Courts say yes on both counts.  Last year, in J.D.B. v. North Carolina the Court decided – again based on “commonsense propositions” of adolescent development established in Roper and Graham – that law enforcement officials must take a youth’s age into consideration when determining if a youth understands his or her Miranda rights.[xii]

In April, the Ohio Supreme Court applied Roper and Graham reasoning in its holding in In re C.P..[xiii] (Editor’s note—read the blog post on the C.P. case here.) C.P. was processed in the juvenile court system, but received a sentence that required lifetime sex offender registration.  The Court determined that requiring youth in the juvenile justice system to be lifetime sex offender registrants was “a lifetime penalty,” which was forbidden under the reasoning set forth in Roper and Graham.[xiv]  The Court also recognized that “[n]ot only are juveniles less culpable than adults, their bad acts are less likely to reveal an unredeemable corruptness.”[xv]

Question Two:  What about youth who do not receive LWOP sentences, but who get sentenced to decades in the adult court system?   Bunch argued before the Sixth Circuit that his case should fall under the rationale in Roper and Graham.  If Bunch had received an LWOP sentence, he clearly would have fallen under the auspices of Graham and been remanded to the trial court for resentencing.  But he didn’t.  Instead, he got an 89 year sentence without the chance of parole and will be eligible for release in September 2090 when he reaches the ripe old age of 106.  

The arguments before the Sixth Circuit centered around three lines of questioning: 1) whether the court can procedurally consider the Graham ruling, which was not law at the time of the last opinion issued in a state court in Bunch’s case, 2) whether or not Graham’s categorical rule about LWOP sentences contemplates “functional” LWOP sentences like the sentence handed down to Bunch, and 3) if Graham encompasses “functional” LWOP sentences, how a court should determine what is considered a “functional” LWOP sentence (questions on this point ranged from the potential use of actuarial tables to determine the youth’s life expectancy to youth sentenced to prison with terminal diseases).

Question Three:  What about youth who receive LWOP for homicide cases?  In March 2012, the U.S. Supreme Court heard oral arguments in two cases – Miller and Jackson – that would determine whether the Eighth Amendment permits youth convicted of homicide to receive life without parole sentences[xvi].  Jackson – who was an accomplice and did not commit the actual killing – and Miller were both 14 when they were convicted of capital murder offenses and received mandatory LWOP sentences.  


In the next several months, Chaz Bunch – along with the 300 youth each year prosecuted as adults in Ohio – will have more clarification on his fate from both the Sixth Circuit and the U.S. Supreme Court.  



[i] Bunch v. Smith, Docket No. 10-3426, Sixth Cir. Ct. of App. (2012).

[ii] Bunch v. Smith, 1:109CV0901, U.S. Dist. Ct. Northern Dist. Of Ohio (2009).  Also see State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.

[iii] Id.  

[iv] Roper v. Simmons, 543 U.S. 551, 569 (2005) (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993).

[v] Graham v. Florida, 130 S.Ct. 2011 (2010).

[vi] Graham, 130 S. Ct. at (2010).

[vii] Arya, Neelum, State Trends:  Legislative Victories from 2005 to 2010 Removing Youth from the Adult Criminal Justice System, Washington, DC:  Campaign for Youth Justice. (2011).

[viii] Centers for Disease Control and Prevention, Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services, MMWR 2007; 56 (No. RR-9), (2007), available at,pp 7

[ix] Children’s Law Center, Falling Through the Cracks:  A New Look at Ohio Youth in the Adult Criminal Justice System, available at, p. 2 (2012).

[x] Bunch v. Smith, 1:09CV901, U.S. Dist. Ct. Northern Dist. Of Ohio (2009).

[xi] Id.

[xii] J.D.B. v. North Carolina, 131 S.Ct. 2394, at 2403 and at 2403 n.5 [citations omitted] (2011).

[xiii] In re C.P., Slip Opinion No. 2012-Ohio-1446.

[xiv]Id.  at ¶ 24.

[xv] Id.  at ¶ 40.

[xvi] Miller v. Alabama, Docket No. 10-9646, U.S. Supreme Court (2011) and Jackson v. Hobbs, Dokcet No. 10-9647, U.S. Supreme Count (2011)

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