5

A Framework for Reform

The developmental science of adolescence suggests that juveniles differ from adults in ways that are centrally important to both the juvenile justice system and criminal justice system. This body of scientific knowledge helps to explain adolescents’ involvement in criminal activity and also enhances our ability to design interventions that will serve the interests of both society and young offenders. The often postulated goals of the justice system are to hold offenders accountable for wrongdoing and to reduce crime. The committee’s view is that these purposes are best served when the legal response to juvenile offending is grounded in scientific knowledge about adolescent development.

Four broad lessons for juvenile justice policy can be derived from the psychological and neuroscience research discussed in Chapter 4. Attending to these lessons can contribute to a justice system that serves the important goals of fairness and crime reduction better than a regime that ignores differences between juveniles and adults. First, psychosocial factors, characteristic of adolescence as a developmental stage, are likely to contribute in important ways to the involvement of adolescents in criminal activity. Major influences on adolescent decision making include susceptibility to peer influence, impulsivity, reward seeking, and a tendency to focus on immediate consequences of decisions and to discount the future consequences (Scott and Steinberg, 2003). A growing body of research indicates that these explanatory factors are grounded in neurobehavioral tendencies associated with normal maturation (Steinberg, 2010b). The normal adolescent brain is not fully mature and functions in a way that predisposes the adolescent to risk-taking behavior. This is not to suggest that all ado-



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5 A Framework for Reform The developmental science of adolescence suggests that juveniles differ from adults in ways that are centrally important to both the juvenile jus- tice system and criminal justice system. This body of scientific knowledge helps to explain adolescents’ involvement in criminal activity and also enhances our ability to design interventions that will serve the interests of both society and young offenders. The often postulated goals of the justice ­ system are to hold offenders accountable for wrongdoing and to reduce crime. The committee’s view is that these purposes are best served when the legal response to juvenile offending is grounded in scientific knowledge about adolescent development. Four broad lessons for juvenile justice policy can be derived from the psychological and neuroscience research discussed in Chapter 4. Attending to these lessons can contribute to a justice system that serves the important goals of fairness and crime reduction better than a regime that ignores differences between juveniles and adults. First, psychosocial factors, char- acteristic of adolescence as a developmental stage, are likely to contribute in important ways to the involvement of adolescents in criminal activity. Major influences on adolescent decision making include susceptibility to peer influence, impulsivity, reward seeking, and a tendency to focus on immediate consequences of decisions and to discount the future conse- quences (Scott and Steinberg, 2003). A growing body of research indicates that these explanatory factors are grounded in neurobehavioral tendencies associated with normal maturation (Steinberg, 2010b). The normal ado- lescent brain is not fully mature and functions in a way that predisposes the adolescent to risk-taking behavior. This is not to suggest that all ado- 119

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120 REFORMING JUVENILE JUSTICE lescents are likely to engage in criminal activity. Moreover, as explained in Chapter 1, adolescent offending is heterogeneous, ranging from the great majority who offend infrequently or whose offending is limited primarily to alcohol or drug use, to a small group of adolescents whose delinquencies are repeated and serious. Individual differences, reflecting each youth’s bio- logical characteristics, experiences, and social environment, which includes family, peer, and neighborhood influences, affect the occurrence, intensity, and frequency of offending. Even taking variations in individual risk factors into account, however, psychosocial influences on decision making during adolescence distinguish juvenile choices from those of adults and indicate that, at a quite fundamental level, the determinants of criminal involvement among juveniles generally differ from the determinants of adult criminal- ity. This etiological difference makes the criminal choices of adolescents less culpable than those of adults and bears directly on the justice system’s response to adolescent offending. Second, if the influences on much teenage criminal activity are devel- opmental in nature, most youth are likely to mature out of their tendency to become involved in crime unless justice system interventions themselves impede or prevent a successful transition to a law-abiding adult life. Thus, research indicates that most adolescent criminal behavior is outgrown and that only a small percentage of teenage offenders are young “career crimi- nals” who will persist in their offending into adulthood (Farrington, 1989; Moffitt, 1993). This pattern of criminal involvement among teenagers sug- gests that a society’s goal of reducing crime will be furthered by ensuring that interventions holding young offenders accountable for their misdeeds do not have the unwanted effect of increasing the risk of reoffending and or otherwise impeding successful maturation. The third lesson provides guidance for accomplishing this goal. The research indicates that adolescence is a period during which teenagers normally make important progress toward acquiring skills and capacities necessary to successfully assume conventional adult roles of spouse (or partner), employee, and citizen. This developmental process involves a dynamic interaction between the individual and the social environment; a healthy social environment provides “opportunity structures” that facili- tate development. Three crucial environmental conditions are important: authoritative parents or adult parent figures, prosocial peer affiliates (and limited access to antisocial peers), and participation in activities that pro- mote autonomy and critical thinking (Chung, Little, and Steinberg, 2005). Facilities or programs in which justice involved youth are placed become an important social context for their ongoing development, and these dis- positions therefore have a strong potential for either facilitating or under- mining healthy maturation. Juvenile justice interventions, both residential and community-based, that genuinely aim to reduce recidivism will seek to

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A FRAMEWORK FOR REFORM 121 provide opportunity structures that can promote young offenders’ develop- ment into productive adults. Finally, knowledge about adolescent development has several important implications for the fairness of the justice system when it holds adolescents accountable for their offending. First, because adolescents lack mature capacities for judgment and self-regulation, the justice system should apply the principle of mitigation, avoiding interventions or sanctions that are excessive or disproportionate to their culpability. Second, justice system participants must also recognize that younger juveniles, due to their devel- opmental immaturity, may be less capable than adults of participating in proceedings to adjudicate their offenses and determine sentences, and some may not meet minimum standards of competence. The ability to under- stand the trial process and to assist one’s attorney is a part of fundamental fairness under the Constitution, and it is essential to the legitimacy of any criminal proceeding (Bonnie and Grisso, 2003; Scott and Grisso, 2005). Third, adolescents’ tendencies to question adult authority are often accom- panied by sensitivity to whether they and their peers have been treated fairly by adults. The justice system should therefore make special efforts to adhere to fair procedures and to avoid practices and outcomes that appear biased or discriminatory, particularly in cases involving minority youth. ADOLESCENTS IN THE JUVENILE JUSTICE SYSTEM Advancing knowledge of adolescent development solidifies and strengthens the normative foundations of the juvenile court. The architects of a separate system of justice for youthful offenders embraced rehabilita- tion rather than punishment as its central mission. Viewed from a contem- porary perspective, the juvenile justice system has three complementary goals—promoting accountability, preventing reoffending, and treating youth fairly—each of which is served by a rehabilitative orientation. Pro- moting accountability refers to the process of inculcating and reinforcing norms of personal responsibility, thereby helping to foster adolescents’ healthy moral development and socialization and satisfying society’s expec- tations that corrective action will be taken in response to wrongdoing. Reducing the occurrence of reoffending is a distinct objective of juvenile justice, but it is also the most concrete measure of whether adolescents who have come to the attention of the juvenile justice system have embraced a law-abiding way of life. The duty to assure “due process of law” is, of course, a constitutional obligation, but treating adolescents fairly can also promote positive legal socialization. Scientific study can ascertain whether juvenile justice interventions are achieving these objectives.

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122 REFORMING JUVENILE JUSTICE Crime Prevention Legal mechanisms of prevention operate at two levels: at a population level (general prevention) and at the individual level (specific prevention) (Bonnie, Coughlin, and Jeffries, 2010). At the population level, there are two basic legal tools of prevention: (1) declarative or expressive strategies, which aim to inculcate norms of conduct by expressing social disapproval and punishing violators and (2) deterrent strategies, which attempt to discourage the target population from engaging in the prohibited activ- ity by threatening to impose sanctions if they do. Mechanisms of specific prevention operate at the individual level after an offender is apprehended, with the goal of preventing that particular person from committing future crimes. This can be accomplished by a variety of legal mechanisms, includ- ing intimidation by threat of future penalties (sometime called specific deterrence), incapacitation, or rehabilitation. The goal of specific crime prevention has always been important in juvenile crime policy, but the form of prevention has differed in different periods. During the period of the traditional juvenile court, the emphasis (in theory at least) was solely on rehabilitation. During the 1980s and 1990s, lawmakers assumed that incapacitation was the only effective means of preventing juvenile crime. Modern policy makers, guided by the scientific knowledge of adolescence, seek to prevent juvenile offenders from reoffending not only through spe- cific rehabilitative programs, but also by fostering a healthy social environ- ment. It is important to reemphasize that many programs and interventions are available to promote healthy development and prevent delinquency during childhood and adolescence before youth become involved with the juvenile justice system. We are focusing here only on the preventive role of the juvenile justice system itself. General Prevention The punitive reforms of the 1980s and 1990s aimed to send a strong message to juveniles generally that their crimes would be severely punished. But the science of adolescence would seem to indicate that general preven- tion, and particularly deterrent threats, may operate less effectively with adolescents than with adults. First, the available evidence indicates that the anticipated response of peers has a greater impact on juveniles’ choices about criminal activity than does the threat of sanctions (Foglia, 1997). Moreover, adolescents’ tendency to focus on immediate consequences may lead them not to attend to abstract or remote threats. Even increasing the severity of the threatened sanction may add little to its deterrent effect for adolescents, when the punishment is projected far into the future, especially if the probability of detection is perceived to be low. Conversely, an immedi-

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A FRAMEWORK FOR REFORM 123 ate sanction combined with a high probability of detention is more likely to deter offending. Individual Prevention The goal of protecting the public from violent young offenders was an important rationale for the harsh reforms of juvenile crime policy in the 1980s and 1990s. But these reforms relied heavily on incapacitation to achieve their crime prevention goal. At one level, incapacitation is effec- tive at reducing crime—young offenders who are locked up are not out on the streets engaging in crime. But placement in institutions is very expen- sive and, as discussed below, confinement under punitive conditions may increase recidivism in young offenders after release rather than reducing it. Scientific knowledge about adolescence sheds light on the possible harmful developmental impact of harsh or extended confinement; although it may be effective in achieving public protection in the short term, it may be inef- fective at reducing the risk of future offending (Fagan, 1999; Bishop and Frazier, 2000). To be clear, secure institutional confinement sometimes has a place in juvenile justice policy, but it should be used only for youth who pose a serious and immediate threat to public safety. As Chapters 6 and 7 demonstrate, the research also suggests that other justice system interven- tions (aside from confinement) can reduce juvenile crime while holding young people accountable for their conduct. As noted above, most youth crime is what psychologist Terrie Moffitt (1993) has called “adolescence-limited” offending, and most young offend- ers will desist from offending as they age into adulthood. The statistics uniformly show that crime rates increase steadily from early adolescence to age 17 and then decline sharply thereafter; 17-year-olds commit more crimes than any other age group (Piquero, 2008b; Piquero et al., 2012). This developmental pattern in criminal activity parallels laboratory-based findings showing heightened risk taking (Steinberg et al., 2008; Figner et al., 2009) and enhanced activity in the emotional brain region (Galvan et al., 2006; Hare et al., 2008; Somerville, Hare, and Casey, 2011) in adolescents from approximately age 13 to age 17 that “may be due to the combination of relatively higher inclinations to seek excitement and relatively immature capacities for self-control that are typical during this period of development” (Steinberg et al., 2008, p. 1,764). The research is inconclusive regarding the specific or definitive boundaries (i.e., onset and offset) because they vary by specific behavior and brain system, making it difficult to narrow the age range as to when this occurs. If the criminal activity of many young offenders is driven by developmental influences, dispositions that hold them accountable for their crimes while providing

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124 REFORMING JUVENILE JUSTICE opportunity structures essential for healthy development are more likely to reduce recidivism than either “slaps on the wrist” or harsh punishment. This account of the connection between adolescent development and teenage criminal activity underscores that an important preventive goal of the justice system in responding to juvenile crime is to maximize the pros- pects that young offenders will make a successful transition to adulthood with their expected range of opportunities intact. Public protection is an important objective of the justice system; no regime that sacrifices this goal will be viable over time. Incapacitation may be a justifiable public response for cases involving repetitive violent offenders, but in focusing on short- term public safety, lawmakers should be careful not to increase the social costs of juvenile crime over the long term. For most young offenders, the ultimate goal of preventing future offending may be best served through interventions that do not compromise public safety in the short term and most importantly that prepare them for conventional adult roles as work- ers, intimate partners, and citizens. At least in its rhetoric, the traditional juvenile court signaled that juve- nile offenders bore no responsibility for their crimes. This rhetoric not only exacerbated public fears that the justice system was failing to protect the public from juvenile offenders, but also probably diluted accountability in young offenders. However, as discussed below, harsh sanctions in institu- tional settings may contribute to recidivism. The committee concludes that juvenile dispositions that incorporate developmental knowledge may assist delinquent youth to complete essential developmental tasks, including the task of learning to take responsibility for their own mistakes and to live law-abiding lives (Bazemore and Schiff, 2005). Delinquency Dispositions The goal of preventing juvenile crime and reducing its social costs can be furthered by incorporating developmental knowledge into dispositional policies and practices of the juvenile justice system. Perhaps the most impor- tant lesson of the developmental research for designing delinquency disposi- tions that are likely to reduce reoffending juvenile crime is that the social context plays a critical role in psychological development during the forma- tive stage of adolescence (Bronfenbrenner and Morris, 1998; Chung, Little, and Steinberg, 2005). A youth’s social setting—family, peer group, school, and community—can either inhibit or facilitate healthy development. For the youth in the justice system, the program or facility in which he or she is placed becomes the developmental setting and thus can have a substantial impact—positive or negative—on the youth’s future developmental trajec- tory in ways that may affect recidivism. Juvenile justice programs can either

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A FRAMEWORK FOR REFORM 125 further or undermine the law’s crime prevention goals on the basis of the kind of developmental setting they provide. Juvenile justice interventions should be structured to help adolescents acquire skills that are essential for fulfilling conventional adult roles. These include not only educational and vocational skills but also social skills that allow individuals to form intimate relationships and cooperate in groups, as well as the ability to act responsibly without supervision (Lipsey, 1995). The attributes of programs that are likely to exert positive influence on psycho- social development will vary depending on young offenders’ needs and the level of security and culture of the program. The research suggests that sup- portive adult authority figures; prosocial peer affiliations; and educational, employment, and other activities that promote autonomous decision mak- ing and critical thinking are important in providing opportunity structures that facilitate normative development. Moreover, young offenders need to ­ acquire the tools to deal with the challenges they face in their families, peer groups, and neighborhoods—the social context of their future lives. It is thus not surprising that many successful juvenile justice programs adopt an eco- logical approach in which parents, families, peers, schools, and communities play a prominent part (Henggeler, Melton, and Smith, 1992). Chapter 4 makes clear that parents play a very important role in their children’s psychological development and can either support healthy devel- opment and prosocial behavior or contribute to their children’s inclina- tions to engage in delinquent behavior. The Progressive Era reformers who established the traditional juvenile court assumed that parents were the source of their children’s delinquent proclivities and aimed to substitute the benevolent state as parens patriae (Tiffan, 1982). This view had a lasting influence on juvenile justice policy; until recently, juvenile justice programs paid little attention to parents. But the research described in Chapter 4 confirms that parents can play pivotal roles in preventing reoffending if the courts work with them. Several justice system programs most effective at reducing recidivism involve an emphasis either on parental involvement or on providing a parent-like alternative when parents are unable or unwilling to assume a positive parental role. Multisystemic therapy, functional family therapy, and multidimensional treatment foster care all put parents and the parent-child relationship at the center of their treatment programs (Henggeler, Melton, and Smith, 1992; Barnoski, 2004; Greenwood, 2006). The importance of including parents as key participants in programs directed at young o ­ ffenders supports a policy of keeping delinquent youth in their com- munities whenever possible. Even when they must be placed in residential facilities, including parents in their treatment program is important. On this basis, the Missouri model of small residential facilities located near

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126 REFORMING JUVENILE JUSTICE o ­ ffenders’ homes is superior to large institutions located far from urban centers (Task Force on Transforming Juvenile Justice, 2009). The care­ givers in these programs also engage in practices that are consistent with the actions required of parents to support healthy adolescent development. Chapter 4 also makes clear that another important element of ado- lescents’ social context is peer affiliations; peer relationships can have a positive or negative impact on psychological development and on the incli- nation of juveniles to get involved in criminal activity. Not surprisingly, many young offenders have antisocial peer affiliates who may reinforce their delinquent tendencies. An important challenge for the justice system in designing interventions is to limit the influence of antisocial peers while pro- viding youth with the tools to resist negative peer pressure. One deficiency of large juvenile correctional facilities (and adult prisons) is that these set- tings are likely to involve unsupervised contact with antisocial peers and no contact with prosocial peers (Scott and Steinberg, 2010). A key lesson of the developmental research is that association with antisocial peers should be limited; interaction should be either avoided or highly structured, visible, and transparent. Community programs and small residential facilities are better situated than are large institutions to restrict interaction among delin- quent youth and to provide the necessary structure and visibility, although they must also actively address this issue. Size and community location do not solve this problem. Community programs are in a better position to promote contact with prosocial peers. The scientific evidence reviewed in Chapter 6 shows that well-designed community-based programs are more likely than institutional confinement to facilitate healthy development and reduce recidivism for most young offenders. Aside from the importance of involving parents and limiting and structuring contact with antisocial peers (and encouraging contact with prosocial peers), these programs can more readily be designed to provide a social context with opportunity structures for healthy development and the tools to deal with negative influences in the setting in which the youth will live in the future. For the small proportion of youth who require con- finement in residential facilities, proximity to their community is likely to be less disruptive of developmental progress than commitment to distant facilities. As suggested above, large facilities that are located far from young offenders’ homes may be particularly harmful (Bishop and Frazier, 2000). The practice of committing youth to large institutions that fail to provide for their developmental needs is both costly in financial terms and ineffec- tive in furthering the goal of crime prevention. A 2009 governor’s task force report in New York delivered a harsh rebuke of that state’s juvenile justice system, pointing to the high recidivism rates among the large number of youth incarcerated in secure juvenile institutions far from their homes in New York City (Task Force on Transforming Juvenile Justice, 2009).

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A FRAMEWORK FOR REFORM 127 Collateral Consequences of Delinquency Adjudication Developmental research indicating that most juvenile crime is adolescence-limited offers another lesson for designing policies that serve the long-term goal of reducing juvenile crime. Society has an interest in juvenile offenders maturing into productive adulthood; thus, policies and practices that impede that progress or impose burdens that follow youth into their adult lives harm society as well as young offenders. Criminal conviction is often accompanied by collateral consequences required or permitted by law, such as disenfranchisement, limitation of employment opportunities, and, for certain offenses, registration in pub- licly accessible databases. Whatever the justification for these practices for adults, they are fundamentally at odds with a developmentally informed system of juvenile justice. Adolescent-limited juvenile offending does not reflect on a youth’s character or disposition. Moreover, a criminal record may impede the development of prosocial peer and intimate relationships in adulthood (Laub and Sampson, 2001). Except in extraordinary cir- cumstances involving a compelling need to protect public safety, official records of a juvenile’s encounters with the justice system should be strictly confidential so as to fully preserve the youth’s opportunities for successful integration into adult life. Similarly, citizens should not be disenfranchised on the basis of youthful conduct that has limited or no predictive relevance to community safety. Fairness Notwithstanding its continuing commitment to rehabilitation, the con- temporary juvenile justice system still jeopardizes many adolescents who become enmeshed in it. As the Supreme Court declared in In re Gault (1967),1 the protective ambition of the juvenile court does not weaken society’s obligation to ensure fundamental fairness all the way through the process—including police decisions to question a youth, take custody, or file a charge; prosecutorial and court decisions to initiate proceedings; adjudication; and dispositional placements. Even when invoked for the ostensible benefit of the youth, exercise of the state’s power deprives him or her of liberty and may result in harm. This power must accordingly be exercised sparingly and fairly. Like other aims of juvenile justice, achieving fairness is developmen- tally grounded. First, interventions or sanctions that are intended to hold adolescents accountable for their wrongdoing should not be excessive or disproportionate to the seriousness of the wrongdoing or to the blame­ 1  In re Gault, 387 U.S. 1 (1967).

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128 REFORMING JUVENILE JUSTICE worthiness of the youth. Second, procedures that may be regarded as fair to adults may not be fair to juveniles, because they are less able than adults to protect their own interests. (See Chapter 7.) Third, adolescents are very sensitive to perceived injustice (Tyler and Huo, 2002; Fagan and Tyler, 2005; Fagan and Piquero, 2007; Woolard, Harvell, and Graham, 2008), and unfair treatment by the legal system may accentuate antisocial tenden- cies, whereas fair official responses to wrongdoing may enhance respect for and obedience to law and reduce the likelihood of reoffending (Sherman, 1993). These points will be addressed in turn. Proportionality It has long been recognized that children below a certain age lack suf- ficient moral understanding of their conduct to deserve any official punish- ment by the state. Under the rules of common law, criminal punishment was categorically precluded for children younger than age 7, and older children could also be found to lack the requisite moral understanding on a case-by- case basis under the so-called infancy defense (Walkover, 1984). Although the juvenile justice system has largely displaced the infancy defense, many states set a minimum age (e.g., 8 or 10) for the juvenile court’s delinquency jurisdiction, reflecting the judgment that children younger than the juris- dictional age, as a class, are not sufficiently blameworthy to be subject to delinquency adjudication and that their misconduct should be dealt with in the child welfare or education systems rather than the delinquency system. Historically, delinquency jurisdiction has served as an alternative to criminal court jurisdiction for adolescents; it aims to hold adolescents accountable for their offending while undertaking interventions designed to reduce reoffending. Seen in this way, the policies and practices guiding dispositions in the juvenile justice system are predicated on a widely shared moral judgment that punishment in the adult criminal justice system in itself is presumptively disproportionate to the culpability of younger adolescent offenders as a class. However, despite the legislative reticence to embrace the language of retribution, use of lengthy or harsh periods of confinement for adolescents in juvenile courts are problematic under the principle of pro- portionality as well as on utilitarian grounds. Concerns about excessive sen- tences for adolescents are, of course, magnified if the juvenile is prosecuted in criminal court. (This issue is explored in the next section in this chapter.) Procedural Fairness The developmental immaturity of juveniles may affect their ability to exercise their rights and to participate competently in proceedings adjudi- cating their criminal charges, whether these proceedings occur in juvenile

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A FRAMEWORK FOR REFORM 129 courts or criminal courts. The U.S. Constitution requires that defendants be afforded certain rights when they are suspected of and charged with crimes to ensure that the proceedings are fair. Because of adolescents’ reduced capacity for reasoning and understanding and psychosocial immaturity, they may be less capable of exercising their rights than are adults (Grisso, 1981). The Supreme Court recognized this point indirectly in JDB v. North Carolina (2010) in rejecting the statement of a 13-year-old made without Miranda warnings. The Court held that the age of the youth questioned by a police officer in a school conference room must be considered in evaluating whether it was reasonable for him to believe he was not free to leave. Research shows that juveniles are far more likely than adults to waive their right to remain silent (Grisso, 1980) and to confess to crimes (and even to make false confessions) than are adults (Scott, Reppucci, and Woolard, 1995). Juveniles under age 15 have a poorer comprehension of their right to remain silent, as do 15- and 16-year-olds with below-average intelligence (Grisso, 1981). Juveniles are also more likely to waive their right to an attorney than are adults charged with crimes, despite the fact that they are less capable of protecting their interests in the justice system. (See Chapters 3 and 7.) A criminal defendant must be competent to stand trial for a criminal proceeding to meet the requirements of constitutional due process. Accord- ing to the Supreme Court, to satisfy this constitutional requirement, the defendant must be capable of assisting his or her attorney with his defense and must have a rational as well as a factual understanding of the proceed- ings against him or her.2 The competence requirement has typically been applied to protect mentally ill and disabled adults; it has also been applied in juvenile delinquency proceedings involving youth with mental disabilities. However, as greater numbers of youth have become eligible for prosecution in adult criminal court under law reforms in recent decades, courts and leg- islatures have recognized the concept of developmental incompetence (Scott and Grisso, 2005). Research evidence indicates that about 33 percent of 11- to 13-year-olds and 20 percent of 14- and 15-year-olds may not be com- petent to stand trial under the standard applied to adults due to their devel- opmental immaturity (Grisso et al., 2003). Many younger teens may simply lack the capacity for understanding and reasoning to comprehend the trial and its consequences or to be able to assist the attorney. Even older ado- lescents may be less capable of making decisions that criminal defendants must make—such as the decision to accept a plea offer. Justice Anthony Kennedy in Graham v. Florida (2010)3 recognized that the developmental immaturity of adolescent defendants could undermine the ability of their 2  Dusky v. U.S., 362 U.S. 402 (1960). 3  Graham v. Florida, U.S. Supreme Court, 560 U.S. _ (2010) (Slip Op., at 23).

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130 REFORMING JUVENILE JUSTICE attorneys to adequately represent them in criminal proceedings, unfairly resulting in erroneous convictions. The possibility that many younger teens are not competent to participate in criminal proceedings poses a serious challenge to the prosecution of juveniles as adults and raises an important concern that must be addressed even in juvenile delinquency proceedings. Perceived Fairness Recent research indicates that individuals’ perceptions of fairness are important to legal socialization (Piquero, Moffitt, and Lawton, 2005; Tyler and Fagan, 2008). As explored in Chapter 7, the still-nascent literature on legal socialization during adolescence suggests that juveniles may be more likely to accept responsibility for less serious offenses early in the process if they perceive delinquency proceedings to be fair and transparent and any sanctions imposed to be proportionate to their offenses. And the converse is also true. For example, youth in prison are more likely to perceive sentences to be unfair and less likely to forswear future offending than those in the juvenile system (Sherman, 1993). More generally, the well-documented pat- tern of disproportionate minority contact throughout the process, together with disproportionately harsh sentences imposed on minority youth, are likely to contribute to perceptions by African American youth and those who are members of other ethnic and racial minorities that the justice sys- tem is fundamentally unfair. These perceptions, which begin to form even before initial contact with the justice system, impede efforts to encour- age minority youth to accept responsibility for their criminal acts and to internalize prosocial values. As important aim of juvenile justice reform is to heighten the awareness of all participants of the ways in which their conduct can affect and influence the legal socialization of minority youth. ADOLESCENTS IN THE CRIMINAL JUSTICE SYSTEM As a rule of thumb, interventions shown to be effective in preventing juvenile reoffending at reasonable cost are also likely to satisfy society’s expectations that corrective action will be taken in response to wrong­ oing. d However, for serious violent offending, additional policy considerations may be relevant. Perhaps the greatest political challenges that juvenile crime policy makers face are those relating to whether juveniles should ever be subject to lengthy confinement. a response that rarely can be justified as a means of preventing reoffending (because it is more likely to be crimino- genic) but is nonetheless thought to be a necessary response to especially serious offenses, such as homicide or armed robbery. In such cases, a lengthy period of confinement may be sought by prosecutors to register societal disapproval and to incapacitate youth who are thought to present a

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A FRAMEWORK FOR REFORM 131 severe risk of serious reoffending based on their offense histories and other risk factors. These decisions require delicate judgments in which many con- siderations will be weighed, including public safety and the need to satisfy victims of crime and communities. Developmental knowledge will not, and should not, be the only factor that determines the jurisdictional boundaries between the adult and juvenile courts. But as the Supreme Court and policy makers across the country have recognized in recent years, developmental knowledge should inform legal policies that govern adult punishment of juveniles in important ways. Specifically, the boundaries between juvenile justice and criminal justice, and the sentencing options available for juve- niles who are being tried in criminal courts, should be compatible with two normative principles derived from the developmental precepts summarized above and from recent decisions of the Supreme Court: proportionality and individualization. Diminished Culpability The proportionality principle implies that a person whose conduct was not blameworthy should not be punished at all, and that even blameworthy offenders should not be punished by sanctions that are excessive, as mea- sured by the harm caused by the offense and the degree of the offender’s culpability (Duff, 1993). Thus, for example, a criminal defendant who was insane at the time of the offense may be excused from criminal responsibil- ity altogether, whereas a defendant whose admittedly unlawful aggression was provoked by the victim’s wrongdoing may receive a more lenient sen- tence than he would have received in the absence of provocation (Bonnie, Coughlin, and Jeffries, 2010). An expanding body of developmental science supports the traditional supposition that adolescent offenders (as a class) are less culpable than adult offenders because their choices are influenced by psychosocial factors that are integral to adolescence as a developmental stage and are strongly shaped by still-developing brain systems (Scott and Steinberg, 2010). Taken together, susceptibility to peer influence, deficiencies in risk perception, sensation-seeking, the tendency to discount future consequences, and weak impulse control are likely to play an important role in shaping adolescent choices that lead to offending. It is not surprising, for example, that ado- lescents typically offend in groups, whereas adult criminals are much more likely to act alone (Reiss and Farrington, 1991; Farrington and Welsh, 2007; Piquero, 2008b). Moreover, adolescent criminal activity may repre- sent the risky experimentation that is part of the developmental process of identity formation for many adolescents (Gardner and Herman, 1990). As Chapter 4 demonstrates, recent research on adolescent brain development provides evidence that the developmental factors that seem to contribute

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132 REFORMING JUVENILE JUSTICE to adolescent offending have biological underpinnings. Of course, it is not possible to study the decision making of teenagers actually engaging in criminal activity. But the current body of research can be applied to these decisions, supporting the conclusion that much teenage criminal activity is probably a product of developmental forces rather than deeply rooted deficiencies in character (Albert and Steinberg, 2011). To the extent that this is so, juvenile offenders are appropriately seen as less culpable than their adult counterparts. The psychosocial immaturity that characterizes adolescence does not lead every adolescent to get involved in crime. Individual factors and social context also play important roles in the etiology of adolescent offending. Some youth have individual characteristics and vulnerabilities that place them at higher risk for criminal offending, and others have what are often described as “protective” characteristics; some family, peer, and neighbor- hood settings contribute to teenage offending more than others. However, the research supports the conclusion that much adolescent involvement in crime is driven by developmental influences and is not indicative of incipient character pathology or the early stage of a criminal career. Indeed, normal teenagers growing up in neighborhoods in which many peers are involved in crime may be subject to substantial pressure to participate (Fagan, 1999). That adolescents are generally understood to be less culpable than adult offenders does not mean that they should be regarded as children who lack moral or legal responsibility for their crimes. As Chapter 2 explained, this was the view of the social reformers who established the juvenile court a century ago. But modern science says that adolescence is different from both childhood and adulthood in ways that mitigate the criminal blame- worthiness of adolescents. In short, developmental knowledge challenges the fairness of subjecting juvenile offenders to the same punishment as their adult counterparts. Mitigated Punishment The U.S. Supreme Court has provided powerful support for the miti- gation principle as a foundation of juvenile crime policy in three recent landmark decisions. In each of these opinions, the Court pointed to devel- opmental psychology and neuroscience evidence in holding that offend- ers who were younger than age 18 at the time of their offenses cannot be subject to the most severe criminal penalties because of their reduced culpability. In a 2005 opinion, Roper v. Simmons, the Court held that the Eighth Amendment ban on cruel and unusual punishment prohibited the use of the death penalty for a crime committed by a juvenile. Drawing on scientific knowledge, the Court pointed to the decision-making deficits of adolescents that contribute to impulsive risk taking, their vulnerability to

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A FRAMEWORK FOR REFORM 133 external pressures from peers and families, and their unformed characters. Because of these distinctive aspects of adolescence, punishments reserved for the worst offenders are excessive as applied to juveniles. “Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.”4 Five years later, in Graham v. Florida (2010), the Court prohibited the sentence of life without parole for a non- homicide offense on the same constitutional ground. Most recently, the Court in Miller v. Alabama (2012) rejected a mandatory sentence of life without parole even for juvenile offenders who committed homicide. Although juveniles seldom received these sentences even before the Supreme Court proscribed them, the general principle of mitigation has a broader reach than the two specific rules enunciated in these decisions because it supports more lenient dispositions for adolescents as a general policy. This translates into dispositions that are shorter in duration than those imposed on adults for similar crimes. Moreover, when judged from the constricted time perspective of an adolescent, even sentences that are shorter than those imposed on adults may be experienced as longer. Transfer to the Criminal Court Developmental science strongly reinforces the long-standing legal tradi- tion of holding juveniles accountable in a separate juvenile justice system. However, even after traditional juvenile court was established, some youth were prosecuted in criminal court and punished in the adult system. How the boundary is drawn between the two systems has always been controver- sial, and the laws governing transfer of jurisdiction from juvenile to adult courts (as well as the sentences available for punishment of youthful offend- ers in the adult system) have undergone pendular swings. As Chapter 2 describes, laws enacted in the 1990s in many states expanded substantially the category of youth subject to prosecution and punishment as adults. To be sure, many youth dealt with in the adult system were placed on proba- tion and some proportion were even sent back to the juvenile system, but the number of youth who experienced preadjudication detention in adult jails and were ultimately sent to prison increased substantially as a result of these laws. However, legislatures have shown a willingness to reexamine transfer rules (Feld and Bishop, 2012). The policy determination of where to draw the lines—in relation to the age of transfer, the offenses that should trigger transfer, and restrictions on the severity of sentences of juveniles for particularly serious offenses—requires a number of complex value judg- ments that cannot be resolved based solely on developmental evidence. 4  Roper v. Simmons, 541 U.S. 1040 (2005, p. 568).

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134 REFORMING JUVENILE JUSTICE But as the Supreme Court has made clear, developmental science does play an important role in determining the conditions under which juveniles are subject to prosecution and punishment in the adult criminal court. The committee believes that these policies can and should be informed by the two important principles announced by the Court—proportionality and individualization—as well as the policy goal of crime prevention. Both proportionality and prevention support a policy of retaining youth in the juvenile justice system; adult prosecution and punishment should be “uncommon.”5 First, from the standpoint of proportionality, the ceiling for punishment of juveniles should be lower than it is for adults committing similar offenses, and juvenile court dispositions (which include residential placement in appropriate cases) constitute sufficient sanctions for almost all youth. Second, confinement in adult jails and prisons is likely to be counter- productive in many cases (Austin et al., 2000; Mulvey and Schubert, 2011) ­ and should therefore be regarded as exceptional rather than routine—and should not be mandatory in any event. Although supporters of the punitive reforms of the 1990s argued that getting tough on juvenile offenders was necessary to protect the public, developmental knowledge indicates that punishing juveniles as adults is not likely to reduce recidivism and is likely to increase the social cost of juvenile crime. Prisons have been characterized as developmentally toxic settings for adolescents (Task Force on Community Preventive Services, 2007; Redding, 2008); they contain none of the attributes of a social environment that are likely to facilitate youthful progress toward completion of the devel- opmental tasks that are important to functioning as law-abiding adults (Forst, Fagen, and Vivona, 1989; Bishop and Frazier, 2000). The available adult authority figures are prison guards whose job is to maintain order and security and who are typically in distant hostile relationships with p ­ risoners (Bishop and Frazier, 2000). Not surprisingly, young prisoners perceive prison staff as unconcerned about their welfare and uninterested in helping them acquire social skills or deal with problems. In the juvenile system, in contrast, youth generally view staff as concerned about their welfare (Bishop and Frazier, 2000). Moreover, although some prisons segregate juveniles, in most adult facilities they associate with other prisoners, who may teach them to become more proficient criminals or victimize them but who are unlikely to provide the support and authoritative adult guidance needed for healthy develop- ment. Even segregation is problematic as young prisoners can sometimes be quite isolated—effectively in solitary confinement (American Academy of Child and Adolescent Psychiatry, 2012). Indeed, youth are sometimes purposely isolated to protect them from adult predators (McShane and 5  Miller v. Alabama (2012, p. 19).

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A FRAMEWORK FOR REFORM 135 Williams, 1989). In comparison to juvenile facilities in many states, most prisons have few educational, vocational, or therapeutic programs and gen- erally are unlikely to provide the opportunity structures needed for healthy psychological and social maturation during this critical developmental stage (Beck et al., 1993; Bishop and Frazier, 2000). In short, the experience of imprisonment is more aversive for adolescents than for adult prisoners, because adolescents are in a formative developmental stage in which their social context is likely to shape the trajectory of their future lives. While some may view this experience as one that is deserved due to the harm caused to any victim of crime, it does not accomplish the purpose that most victims desire for a juvenile offender, i.e., that the result of incarceration will be no future victims. Moreover, as suggested above, a criminal record may severely limit employment prospects and educational opportunities, as well as hampering the ability to develop relationships with noncriminal affiliates. The harmful effects of the prison experience and of a criminal record are likely to have a lasting negative effect on psychosocial develop- ment and to make the transition to noncriminal adult life extremely difficult if not impossible. As noted earlier, however, older juveniles who have committed serious violent offenses may be deemed to pose too great a risk to public safety to be dealt with in the juvenile system, and they may be sufficiently mature that adult punishment is less unfair than with younger teens. For this very small group of offenders, longer periods of incarceration available in the adult system may be regarded as necessary to protect public safety. But even for youth charged with serious violent crimes (e.g., felonious assault, rob- bery, kidnapping, rape, carrying a firearm in the commission of a felony), an individualized decision by a judge in a transfer hearing should be the basis for the jurisdictional decision. The committee counsels against allowing the prosecutor to make the jurisdictional decision, as is allowed under direct- file statutes. The committee also opposes automatic transfer based solely on the offense with which the youth is charged because it fails to consider the maturity, needs, and circumstances of the individual offender or even his or her role in the offense or past criminal record—all of which should be considered in a transfer hearing.6 Similarly, mandatory sentences of confinement for young offenders should be avoided. The committee draws support for these recommendations from the Supreme Court’s rejection of the mandatory sentence in Miller and its insistence on an individualized hearing to determine the appropriateness of such a sentence. More gener- ally, as a matter of policy, the Court’s proportionality analysis supports shorter sentences for juveniles, compared with those received by adults 6  A similar conclusion was reached by Loeber and Farrington (2012, p. 350) in their review of adolescent and young adult criminal careers and its implications for criminal justice policy.

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136 REFORMING JUVENILE JUSTICE for the same offenses. Furthermore, when youth are detained in adult jails and/or sentenced to adult prisons, their developmental needs as adolescents should not be ignored—as happens in some states that provide few services to teenage prisoners. Educational, vocational, and therapeutic programs directed at juveniles serve the goal of maximizing the potential of young offenders to become law-abiding adults. The committee’s recommendations regarding transfer to adult court are solidly based on the larger lessons of the Supreme Court’s decisions in Roper (2005), Graham (2010), and Miller (2012). Juvenile offenders as a class are less culpable than their adult counterparts and the decision to prosecute a juvenile as an adult is one that should be made with careful deliberation on an individualized basis. Moreover, although politicians may believe that the public will insist that youth charged with serious crimes be tried as adults, substantial research evidence indicates that the public does not support transfer of young juveniles and generally favors rehabilitation of juvenile offenders (Nagin et al., 2006; Scott et al., 2006; Piquero et al., 2010). CONCLUSION In recent decades, developmental psychologists and neuroscientists have learned a great amount about the developmental stage of adolescence. This knowledge has important implications for juvenile justice policy, pro- viding the framework for a system that is fair to young offenders and that also is likely to reduce youth crime by maximizing the potential of young offenders to become productive, law-abiding adults and minimizing the harmful impact of involvement in the juvenile justice system. This develop- mental model of juvenile justice rejects many of the punitive law reforms of the late 20th century as often excessively harsh and therefore unfair to young offenders and as likely to increase rather than decrease the threat they pose to public safety. Public safety is a legitimate and important goal of justice policy, but there is good reason to believe that this goal was not being effectively served by this harsh approach. Although some juvenile offenders pose such a grave threat to public safety that trial as adults and lengthy incarceration may be regarded as necessary, the policies introduced in the 1980s and 1990s have resulted in the confinement of many youth whose lives and developmental trajectories have probably been harmed, with little compensating public safety benefit. Indeed, the evidence suggests that incarceration likely increased the risk of recidivism for many youth. It is important to emphasize that policies based on developmental research do not represent a return to the outmoded and naive rehabilita- tive model of the traditional juvenile court. The traditional model was built around an idealized vision of young offenders as innocent children

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A FRAMEWORK FOR REFORM 137 whose parents had failed them and whose offending conduct could readily be redirected by the benevolent state. Today a more sophisticated under- standing of adolescent development recognizes that young offenders are neither children nor adults, but adolescents whose criminal activity is often a predictable, and transient, feature of adolescence itself. This knowledge provides a foundation for a juvenile system that takes proper account of the formative nature of adolescence, by both ensuring genuine accountability for the harms young offenders cause while responding to their criminal conduct through interventions that are likely to decrease its incidence and enhance their prospects for productive adult lives. Lawmakers around the country have shown an increasing interest in developmental knowledge and its potential to provide new understandings of juvenile crime and of effective dispositions. Over the past decade, leg- islatures and other policy makers have come to accept a proposition that was vehemently rejected only a few years earlier: that adolescent offenders are different from adults and these differences are important to juvenile justice. In part, the interest in developmental knowledge is a pragmatic response to evidence that the punitive policies of the 1990s were very costly and failed to reduce juvenile crime (which subsequently did drop for unex- plained reasons), and some evidence-based programs promised to be more effective. But attitudes toward young offenders have changed in important ways from the days when young offenders were labeled “super-predators” (Dilulio, 1995), and the research has reinforced these changes; today there seems to be a genuine concern to deal fairly with young offenders in the justice system and to intervene in their lives in ways that preserve their future prospects. The committee concludes that the incorporation of contemporary sci- entific knowledge about adolescence and juvenile crime is likely to result in juvenile justice policies and practices that are both fairer and more effec- tive at reducing crime than policies of earlier periods. Today an important opportunity for major policy reform exists, created by a substantial body of developmental knowledge and policy makers receptive to its importance. Knowledge about adolescent offending and about optimal preventive and rehabilitative responses is far from complete. There are many gaps in under- standing. But the research is sufficiently robust to offer general guidance to lawmakers and practitioners about an effective approach to juvenile justice policy. This chapter has sketched a framework for policy reform based on advances in developmental science. The next two chapters focus on the three complementary goals of the juvenile justice system—preventing reoffend­ng (see Chapter 6) and assuring accountability of juveniles and i treating them fairly (see Chapter 7).

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