7

Accountability and Fairness

In the context of criminal punishment of adults, it is often said that just punishment must “fit the crime.” Under the prevailing legal model of criminal sentencing, a legislature or sentencing commission establishes “presumptive” sentences that “fit the crime,” while allowing sentencing judges some leeway for departure (in favor of greater leniency or greater severity) to “fit the offender.” Legal scholars typically refer to the principle that punishment should fit the crime as “retribution” or “just deserts.” The founding model of the juvenile court dispensed with offense-related considerations altogether in deciding what should be done with the delinquent youth; instead, interactions between the youth and the juvenile justice system, as well as the judge’s choice of disposition, were supposed to be based solely on the goal of rehabilitating the offender. In theory, if not in practice, the seriousness of the offense was not even a relevant consideration, much less a determinative one, in choosing a juvenile court disposition.

In its pivotal decision in In re Gault (1967), the Supreme Court observed that rehabilitative ambitions for juvenile offenders were often unrealized and that delinquent youth were being “punished” in fact, if not in name. In so doing, the Court left the guiding precepts of the juvenile court in confusion. For example, is punishment a suitable aim of the modern juvenile court? Should a juvenile court disposition be designed to fit the offense as well as the offender? If so, how are preventive and punitive considerations to be accommodated or balanced? One way of understanding the instability of the law governing juvenile justice over the four decades since Gault is continuing puzzlement about the answers to these questions. As noted in Chapter 2, however, the committee thinks that a consensus on these basic



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7 Accountability and Fairness In the context of criminal punishment of adults, it is often said that just punishment must “fit the crime.” Under the prevailing legal model of criminal sentencing, a legislature or sentencing commission establishes “presumptive” sentences that “fit the crime,” while allowing sentencing judges some leeway for departure (in favor of greater leniency or greater severity) to “fit the offender.” Legal scholars typically refer to the principle that punishment should fit the crime as “retribution” or “just deserts.” The founding model of the juvenile court dispensed with offense-related con- siderations altogether in deciding what should be done with the delinquent youth; instead, interactions between the youth and the juvenile justice sys- tem, as well as the judge’s choice of disposition, were supposed to be based solely on the goal of rehabilitating the offender. In theory, if not in practice, the seriousness of the offense was not even a relevant consideration, much less a determinative one, in choosing a juvenile court disposition. In its pivotal decision in In re Gault (1967), the Supreme Court observed that rehabilitative ambitions for juvenile offenders were often unrealized and that delinquent youth were being “punished” in fact, if not in name. In so doing, the Court left the guiding precepts of the juvenile court in con- fusion. For example, is punishment a suitable aim of the modern juvenile court? Should a juvenile court disposition be designed to fit the offense as well as the offender? If so, how are preventive and punitive considerations to be accommodated or balanced? One way of understanding the instabil- ity of the law governing juvenile justice over the four decades since Gault is continuing puzzlement about the answers to these questions. As noted in Chapter 2, however, the committee thinks that a consensus on these basic 183

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184 REFORMING JUVENILE JUSTICE issues has finally been reached. We think that this emerging societal con- sensus can be summarized along the following lines: Most fundamentally, reducing recidivism by youth before the juvenile court should continue to be the primary goal of delinquency proceedings (i.e., the dispositional intervention should be designed mainly to “fit the offender”). At the same time, however, the juvenile justice system should also ensure that adolescents are held accountable for their wrongdoing and that, in doing so, they are treated fairly. A review of contemporary juvenile justice statutes reveals that they typically declare dual objectives: holding youth accountable and providing rehabilitative services to reduce their risk of reoffending. Both of these goals are necessary to satisfy public expectations that corrective action will be taken. In the committee’s view, both of these goals can and should be securely anchored in a developmental approach to juvenile offending. In the committee’s understanding, saying that youth should be held accountable is not the same as saying that they should be punished. The concept of accountability is used in everyday speech to refer to a wide vari- ety of mechanisms, both formal and informal, for declaring and enforcing norms of personal and institutional responsibility and taking corrective or remedial action. Formal mechanisms of accountability include being ordered to compensate a victim for the harm that one has caused, being dis- missed from a position in a company for embarrassing the company or causing a loss to its shareholders, or even being turned out of office. Simi- larly, holding adolescents accountable for their offending vindicates the just expectation of society that responsible offenders will be answerable for wrongdoing, particularly for conduct that causes harm to identifiable victims, and that corrective action will be taken. It does not follow, how- ever, that the mechanisms of accountability are punitive or that they should mimic criminal punishments. Condemnation, control, and lengthy confine- ment, the identifying attributes of criminal punishment, are not necessary features of accountability for juveniles, and should be avoided except in the rare instances when confinement is necessary to protect society. Chapter 6 reviewed the evidence regarding the effects of interventions available to the juvenile justice system in preventing recidivism. In this chapter we address official actions taken by the juvenile justice system (and by parallel disciplinary systems in schools) from the vantage point of ensur- ing offender accountability and healthy legal socialization. Although most of the interventions addressed in Chapter 6 can serve both purposes, a key objective of this chapter is to highlight the potentially useful role of official actions other than juvenile court dispositions as instruments of account- ability, particularly those associated with the process of adjudication itself. It is helpful in this respect to have in mind the entire process of involvement in the juvenile justice system, including all official interactions with law

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ACCOUNTABILITY AND FAIRNESS 185 enforcement authorities and judges. Both positive and negative interactions with legal authorities are likely to influence the way youth perceive the law and respond to juvenile justice interventions. Making conduct illegal, disapproving its occurrence, apprehending suspected offenders, holding adjudicatory hearings, and administering sanc- tions communicate messages to the public, including adolescents, about the importance of adhering to a particular norm or to the law in general.1 Cumulatively as well as in specific cases, these events and actions may affect the adolescents’ beliefs about, and attitudes toward, personal responsibility for wrongdoing, obedience to law, obligations to victims, and fairness in the administration of justice A key message of this chapter is that accountability practices in juvenile justice should be designed specifically for juvenile justice rather than being carried over from the criminal courts and should be designed to promote healthy social learning, moral development, and legal socialization during adolescence. If designed and implemented in a developmentally informed way, procedures for holding adolescents accountable for their offending can promote positive legal socialization, reinforce a prosocial identity, and facilitate compliance with the law. However, unduly harsh interventions and negative interactions between youth and justice system officials can undermine respect for the law and legal authority and reinforce a deviant identity and social disaffection. ACCOUNTABILITY FROM A DEVELOPMENTAL PERSPECTIVE Accepting responsibility for oneself and one’s behavior has consistently been regarded as a key measure of maturation in numerous studies involv- ing participants from a variety of socioeconomic classes and ethnic groups, and it has been identified as a key outcome of socialization in Western societies (see Arnett, 2007). Socialization can be thought of as a succes- sion of processes occurring at successive stages of development, in which individuals are taught the behaviors, values, and motivations needed for competent interaction with other individuals in a culture. It is an interac- tive process that involves dynamic relationships between socializing agents and developing youth. In the study of socialization and moral develop- ment, the focus has shifted from the behavior of authority figures and adolescents, respectively, to a greater concern with the interactions between 1  This chapter emphasizes the declarative or expressive effects of prescribing and enforcing the law. As discussed in Chapters 5 and 6, the severity of the threatened sanction probably has little effect in motivating adolescents to refrain from offending. Although increasing the perceived probability of detection may deter adolescent offending, the committee regards deterrence as a secondary consideration in the design of juvenile justice adjudications and dispositions.

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186 REFORMING JUVENILE JUSTICE them (Maccoby, 2007). Indeed, as noted by Grolnick and colleagues (1997, p. 135), “whereas socializing agents can ‘teach’ their children the values and attitudes they hold dear, the important thing is having the children ‘own’ those attitudes and values.” This section briefly reviews both the practices of socializing agents and the unique characteristics of adolescents relevant to the development of their sense of accountability. An important point is that although a child’s family of origin may be the first and most enduring socializing institution, peer groups, schools, religious institutions, and employers play important roles. Recent research also emphasizes the impact of legal actors on ado- lescent socialization. The literature summarized below suggests that, if implemented in a developmentally informed way, procedures for holding adolescents accountable for their offending by the juvenile justice system and by other disciplinary authorities can promote moral development and “legal socialization”—described by Fagan and Tyler (2005, p. 218) as a “a vector of developmental capital that promotes compliance with the law and cooperation with legal actors.” The literature also indicates that procedures youth perceive as unfair and illegitimate may undermine legal socialization and compliance with the law (Fagan and Tyler, 2005). Moral Development in Adolescence Moral development during adolescence, as summarized by Kurtines and Gewirtz (1995), is characterized by developing identification with one’s social groups, becoming responsive to the expectations of others, and defin- ing one’s place in the community as formal social roles are assumed. Rest and colleagues (1999, p. 15) describe adolescence as a time of a “dawning awareness” of the need to establish a system of cooperation, which involves accepting a balance between one’s own rights or freedoms and one’s respon- sibility to respect the rights of others as well as to contribute to society. Accepting responsibility for behavior is integral to moral development. Identity formation (the development of an understanding of self as an individual and as a member of various groups) and the related process of moral identity formation (the slow and normally imperfect process of integrating morality and the self-concept) are key developmental tasks of adolescence (Damon, 1984, 1999). Longitudinal studies examining youth’s participation in community volunteer work have demonstrated what Hastings and colleagues (2007, p. 640) refer to as “a kind of active internalization, of becoming prosocial by being prosocial.” For example, Switzer and colleagues (1995) found that school-mandated involvement in community service over a year was associated with increases in self- perceptions of being altruistic and continued involvement in community activities. Likewise, Pratt and colleagues (2003) found that involvement

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ACCOUNTABILITY AND FAIRNESS 187 in community helping activities at age 17 predicted stronger commitment to being kind and caring at age 19, over and above the stability of values. Thus, encouraging adolescents’ enrollment in community service may be an effective way of promoting their prosocial development, as adolescents are especially primed to incorporate their prosocial activities as an element of their identities. Importantly, identity formation also involves a pursuit of autonomy, which leaves adolescents sensitive to, and at times resistant to, social con- trol efforts of authority figures that they regard as illegitimate (Fagan and Tyler, 2005). Thus, an understanding of the adolescent conception of legitimacy is crucial to informing effective mechanisms of accountability. Adolescent conceptions of morality are dominated by notions of fairness and by developing notions of reciprocity in which approval and respect are earned (Baumrind, 1996). According to Gilligan (1993), these factors, together with their tendencies to spot contradiction and seek absolute truths (Erikson, 1958, p. 121), make adolescents particularly attuned to “false claims to authority at the same time as they yearn for right answers or for someone who will tell them how they should live and what they should do.” Indeed, research demonstrates that perceptions of fairness mediate the youth’s acceptance or rejection of a message; for example, children who perceive their parents’ disciplinary practices to be fair are more likely to internalize their family’s values and beliefs and to behave accordingly (Grusec and Goodnow, 1994). Agents of Socialization As highlighted by Hastings and colleagues (2007), it is important to recognize that any socializing institution or mechanism of accountability that is linked to prosocial behavior requires an adolescent to actively pro- cess a message, assess its meaning and relevance, determine how it can be enacted, and then choose to do so. In this way, moral development is an interactive and integrative process in which adolescents internalize informa- tion not only from the attitudes of others, but, important for our purposes, from the specific ways in which others react and respond to them in holding them responsible for their behavior (Kurtines and Gewirtz, 1995). Thus, accountability practices that are informed by an understanding of the adolescent mind are most likely to be effective in promoting proso- cial development. This section addresses how socializing and disciplinary practices can be effective in promoting the development of accountability of adolescents, who, as described above, are striving to develop social identi- ties, are interested in moral questions, and are sensitive to unfairness and impingements on their autonomy. Given these characteristics, procedures for holding adolescents accountable for their actions should be designed to

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188 REFORMING JUVENILE JUSTICE promote positive moral development and legal socialization, while avoiding interactions that reinforce social disaffection and negative attitudes toward law and legal authority. Parents The dominant paradigm for studying the socialization of prosocial behavior in the real world has been the examination of parenting styles, which have been measured in terms of patterns of control, responsive- ness, warmth, and punishment that parents use to manage their children’s behavior (see Chapter 4). The parenting typology established by Baumrind and her colleagues in the 1960s (authoritarian, permissive, authoritative) provides a model of conceptualizing approaches to socialization and dis- cipline that could be relevant to the juvenile justice system’s challenge of promoting accountability. Research reviewed by Maccoby (2007) demonstrates how parenting practices associated with permissive and authoritarian styles are ineffective at promoting accountability in children, as they either fail to instill any controls or instill only fear of punishment. Thus, the question underlying modern parenting research is not whether parents should exercise author- ity, but rather how parental control can best be exercised so as to support children’s developing capacity for self-regulation. The identification of the authoritative parenting style has captured the combination of responsive, supporting parenting with firmness. Although there has been an unwaver- ing emphasis on rule-setting, monitoring, and the importance of follow- ing up on infractions with discipline, there has also been an increasing emphasis on integrating warmth, humor, responsiveness, and politeness into these control functions. The authoritative style entails parents making age- appropriate demands on their children, modeling moral behavior, establish- ing clear and consistent expectations, and setting up firmly enforced rules of behavior, while also listening to their children, taking their viewpoints into account, providing explanations for parental demands, involving them in decision making, and creating opportunities for their moral reasoning (Laursen and Collins, 2009). Gibbs (2003) highlights the role that “inductive discipline” encounters play in authoritative systems, asserting that although nurturance and role modeling foster receptivity in children, it is these discipline encounters that teach the impact of the child’s selfish acts on others, which is crucial to the development of empathy and accountability (Bugental and Goodnow, 1998). Inductive reasoning in discipline encounters refers to parents inform- ing their children of norms and principles, explaining why rules are neces- sary, highlighting the well-being of others, and illuminating the effects of children’s actions. Discipline that emphasizes power does not cultivate

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ACCOUNTABILITY AND FAIRNESS 189 empathy. Gilligan (1993) notes that the adolescent characteristics described above may be disorienting and frustrating to the adults who have to deal with them, which could lead them to adopt either permissive or authoritar- ian responses. Yet research indicates that adolescents are especially needy of authoritative parenting. Research indicates that adolescents who reported that their parents closely monitored their activities subsequently were more likely to engage in volunteer community work (Zaff et al., 2003), and those who described their parents as having clear rules and high expectations reported two years later that being kind and fairness to others were impor- tant qualities (Pratt et al., 2003). Other studies show that adolescents have positive responses when they believe they are being treated with dignity and respect and have their voices heard in the family decision-making process (see Fondarcaro, Dunkle, and Pathak, 1998). These parenting principles resonate in the justice context. Schools School and teacher characteristics can affect developmental processes (see Caldwell et al., 2009). Wentzel (2002) found that adolescents who perceived their teachers to have high expectations of them had higher levels of social responsibility. Research also indicates that the degree of emotional support from teachers perceived by adolescents predicts students’ adherence to classroom rules and norms (Wentzel, 1998) and in part predicts whether students drop out of school (Rumberger, 1995). School-wide interventions in which teachers are taught to provide stu- dents with clear behavioral expectations, developmentally appropriate room for autonomy, and warmth and support have been shown to con- tribute to increased levels of students’ sense of community and prosocial behavior (Watson et al., 1989). As discussed in Chapters 3 and 4, a growing body of research has focused on school discipline, especially on the effectiveness of alternatives to zero-tolerance policies. These studies have a direct bearing on the chal- lenge of implementing developmentally and culturally sensitive instruments of accountability in the juvenile justice system. For example, school princi- pals who assume responsibility for managing their students’ behavior and changing the attitudes, opinions, and behaviors of the teaching staff seem well positioned to offer wisdom and experiential learning opportunities to law enforcement and justice personnel that address the unique challenges of effectively interacting with oppositional adolescents (Rausch and Skiba, 2006). (For an illustrative example of how school discipline might be handled in a developmentally appropriate way, see Box 7-1.) Scholars and practitioners have also extrapolated promising directions from evaluations of school-based problem behavior reduction programs

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190 REFORMING JUVENILE JUSTICE BOX 7-1 Developmentally Informed School Disciplinary Interventions How would one describe a school that takes into account the devel- opmental level of adolescents when dealing with discipline problems? To begin with, a school that believes its disciplinary policies should reflect a developmental perspective builds its disciplinary strategy around certain premises. First, adolescents are susceptible to lapses in judg- ment, to taking risks, and to not thinking realistically about the conse- quences of their behavior. Second, adolescents are beginners at defining themselves vis-à-vis their community and at balancing their own rights or freedoms with their responsibilities. Third, adolescents are sensitive to perceived unfairness and react favorably to being treated with dignity and respect and having their voices heard. The school does not rely on metal detectors, patting down by secu- rity personnel, or profiling to prevent disorder and crime from occurring on school grounds. Instead, its students are informed at the outset that some behaviors, such as possession of weapons or drugs or seri- ous threat or assault, will not be tolerated. The school has a planned continuum of effective alternatives and works closely with parents, law enforcement, juvenile justice, and mental health professionals in order to develop an array of alternatives for those students whose behaviors threaten school safety or order. The school has written disciplinary guidelines that have been drafted by a group of school leaders and students. Removal from school is the most severe sanction and is reserved for the most extreme circum- stances. Consequences are geared to the seriousness and specific im- implemented with black, Latino, urban, and low-income students and studies of successful teachers of black students, which might likewise hold lessons for juvenile justice system programs and actors. Commonalities among successful programs include an emphasis on student self-regulation and encouragement of “school connectedness” and “caring and trusting relationships” (Freiberg and Lapointe, 2006) between school officials and students. The principals interviewed by Rausch and Skiba (2006, p. 112) reported that a combination of high expectations and support for students can be effective “even for the toughest kids.” Gregory and Weinstein (2008) found that an authoritative style of teaching, in which teachers showed both caring and high expectations, was effective in eliciting trust and cooperation among black students.

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ACCOUNTABILITY AND FAIRNESS 191 pact of the infractions. In setting discipline policies, the school weighs the importance of a particular consequence against the long-term negative consequences of more punitive intervention. It is understood that harsh discipline might create alienation, anxiety, rejection, and the breaking of healthy adult bonds for those subjected to it. Teachers handle infractions at the classroom level whenever possible and are trained to be aware of the potential for bias when issuing referrals for discipline. When students get into trouble, the disciplinary response focuses on repairing the social injury or damage and having the student understand how the behavior has affected other people. Students are asked to take responsibility and to suggest ways to repair the harm. For example, instead of a scenario in which students might be arrested, handcuffed, and taken to jail for a food fight (Saulny, 2009), school personnel would move swiftly to bring the behavior under control and bring students to- gether with cafeteria workers, custodians, and teachers to be given an opportunity to explain what had happened and to identify underlying is- sues. The group would discuss how the incident had affected them, learn about the costs that had been incurred, and identify appropriate ways to make amends. These amends might include cleaning the cafeteria for a specific time period, raising money to pay for damage, or working side by side with the cafeteria staff. Students might also be asked to develop a plan that included their own participation in monitoring student behavior at lunchtime. SOURCE: This section draws on the American Psychological Association Zero Tolerance Task Force (2008); Ashley and Burke (2009); and Wald and Thurau (2010). Legal Socialization Adolescence, marked by the development of an understanding of self as an individual and as a member of various groups (Erikson, 1958), is a crucial time for legal socialization, which has been described as a develop- mental process that results in the internalization of legal rules and norms that regulate social and antisocial behaviors and create a set of obligations and social commitments that restrain motivations for law violation (Fagan and Piquero, 2007). Lind and Tyler (1988) argue that the development of values and beliefs about the legal system during childhood and adolescence forms the basis for a lifelong predisposition toward authority that is a more critical motivator of attitudes toward and compliance with authoritative directives than short-term self-interest.

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192 REFORMING JUVENILE JUSTICE As Fagan and Tyler (2005) observe, attention by researchers to devel- opmental processes that promote compliance with the law has not been accompanied by equivalent interest in how the law itself can affect develop- ment. However, the hypothesis that people’s views about the legitimacy of authorities arise out of social interactions and experiences has been tested under a variety of sampling and measurement conditions (see Tyler and Huo, 2002) in adult populations. Tyler’s research (2006) has consistently shown that adults’ treatment in the judicial process affects their attitudes about the law, and that they are more likely to regard legal authority as legitimate and feel obliged to obey the law if they have been shown respect and given an opportunity for meaningful participation in the proceedings (often characterized as “procedural justice”). Researchers have recently begun to explore how this process of legal socialization unfolds in ado- lescents, for whom formulating beliefs about themselves and society is a central developmental task. Although longitudinal studies of legal socializa- tion are rare, a cross-sectional study by Fagan and Tyler (2005) suggested that perceived legitimacy of the law and legal authorities may decline as adolescents age, an interesting finding on its own. In addition, adolescents’ procedural justice judgments about their personal interactions with legal actors predicted their attitudes toward the legitimacy of law, which, in turn, predicted self-reported delinquent behavior. Likewise, Woolard and colleagues (2008) found that adolescents who anticipated that they would be treated unfairly were less likely to comply with authorities than those who anticipated fair treatment. Moreover, Fagan and Piquero (2007) used interviews of adolescent felony offenders over time to demonstrate that these offenders’ perceptions of procedural justice were a significant ante- cedent of their legal socialization, which influenced patterns of offending over time. The pattern demonstrated by these and other studies (Otto and Dalbert, 2005; Hines, 2007; Sprott and Greene, 2008) suggests that the well-documented connection between adults’ perceptions about how fairly they have been treated by the justice system, regardless of the outcome of their case, and their subsequent compliance with the law also extends to adolescents. Research in juvenile justice settings generally supports the procedural justice perspective. Levels of satisfaction with the fairness of the juvenile jus- tice process among youth and their families in juvenile courts are often higher than those in criminal and civil courts, but the perceptions of partici- pants in juvenile court may be diminished by overt bias and even excessive informality. In a recent survey of participants in North Dakota courts, the National Center for State Courts found that juvenile court participants had one of the highest satisfaction rates of any court type, with more than 80 percent of juvenile court participants reporting high levels of satisfaction on several dimensions of fairness and access. The ratings of juvenile court

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ACCOUNTABILITY AND FAIRNESS 193 participants exceeded those of criminal and civil court participants (Nelsen, 2012, pp. 76-78). In juvenile court, however, perceptions of procedural justice can be fragile. A Minnesota study by Eckberg and colleagues (2004), used an experimental design to evaluate the procedures used to inform youth and parents about the sequence of events in juvenile court hearings. The study showed that juveniles and their families were generally satisfied with the fairness of the court process, but their satisfaction was lessened when the source of information was an administrative staff member rather than a judge or other judicial officer. Surveys of youth involved with the justice system show that “anticipatory injustice,” or the expectation that the actions of justice authorities will be shaped by bias and discrimination, increases with the age of offenders and with the extent of their contact and experience in the justice system, especially among Latino youth and those of African American descent (Woolard, Harvell, and Graham, 2008). Studies of adolescents and their attitudes about the legitimacy of legal authorities indicate—not surprisingly—that older youth (ages 15-16) are more cyni- cal of legal authority than their younger counterparts between the ages of 10 and 14 (Fagan and Tyler, 2005). The procedural justice benefits of the juvenile process, therefore, may be time limited. Given the significant role that perceptions of procedural fairness play in legal socialization, it is important to understand how these perceptions manifest in adolescents. Fagan and Tyler’s (2005) findings showed that adolescents’ perceptions of procedural fairness are based on the degree to which they were given the opportunity to express their feelings or concerns, the neutrality and fact-based quality of the decision-making process, whether the youth was treated with respect and politeness, and whether the authorities appeared to be acting out of benevolent and caring motives. Fagan and Tyler (2005) discuss how ratings on these factors shape legitimacy, suggesting that one source of adolescent values is social experi- ence with legal actors across a range of contexts, including police, school security personnel, and security staff in businesses and private, unregulated settings. Although these factors are in some ways similar to those that pre- dict adults’ perceptions of fairness, they take on special significance given adolescents’ developmentally driven quest for autonomy as validated by a sense of being heard and sensitivity to fairness. Just as arbitrary enforce- ment of restrictive directives (authoritarian parenting) and avoidance of externally imposed rules (permissive parenting) are equally ineffective at instilling a sense of responsibility for actions in adolescents, neither the his- toric juvenile justice system, with its procedural shortcomings and crippled rehabilitative mission, nor the harsh criminal sanctions of the punitive era are likely to reinforce this important developmental lesson. Importantly, research consistently shows (Tyler and Huo, 2002) that minority respondents have lower ratings of procedural justice than whites,

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200 REFORMING JUVENILE JUSTICE and Juvenile Justice Project of Louisiana, 2001, p. 60), and in many other states, including Florida, Georgia, and Kentucky, more than 50 percent of youth waived that right (see, e.g., American Bar Association Juvenile Justice Center and Southern Center for Human Rights, 2001, pp. 19-20; Ameri- can Bar Association Juvenile Justice Center, 2002, p. 28; National Juvenile Defender Center, 2006, p. 28). Youth often lack the cognitive and psychosocial capacity to knowingly, voluntarily, and intelligently waive counsel, given their limited knowledge of the law, impulsivity, and inadequate consideration of the long-term consequences. In order to alleviate the risks posed by adolescent waivers of counsel, state legislators should consider prohibiting waiver unless the child is allowed to consult with an attorney first (see, e.g., Md. Code. Ann. Cts. & Jud. Proc. § 3-8A-20, 2004; Tex. Fam. Code § 51.09; W. Va. Code § 49-5-9(a)(2)), establishing a rebuttable presumption against waiver of the right to counsel by juveniles (see, e.g., Md. Code. Ann. Cts. & Jud. Proc. § 3-8A-20, 2004), or precluding waiver altogether for youth under a certain age or in certain circumstances (Iowa Code Ann. § 232.11(2); Wis. Stat. § 938.23(1m)(a)). All states should require the juvenile court judge to notify youth of their rights and engage them in a comprehensive colloquy in age-appropriate language before accepting a youth’s waiver (see, e.g., Fla. R. Juv. P. 8.165(b); Ky. Rev. Stat. Ann. § 610.060(2)(a)). Investigation and Adjudication The quality of representation a youth receives in the pretrial and adju- dicatory phases may significantly impact his or her opportunity to be heard and perception of fairness. A lawyer who fails to investigate the factual allegations, declines to interview a client before the adjudicatory hearing, and neglects to file pretrial motions is unable to provide the youth with a meaningful voice in the proceedings. Lawyers in juvenile courts are often underresourced, overburdened by high caseloads, and untrained to adequately prepare for trial. Although the standard caseload recommended for delinquency cases is 200 cases per year (Spangenberg Group, 2001), defenders throughout the country may handle from 500 to 1,500 cases (see, e.g., American Bar Association Juvenile Justice Center et al., 2001; American Bar Association, 2002). As a result of high caseloads and limited investigative support, defense attorneys are often unable to investigate cases or interview their clients in advance of the trial (Mlyniec, 2008). For example, in Maryland, most law- yers reported meeting their clients on the day of trial at the courthouse and not investigating the facts of the case or the underlying needs of the clients (American Bar Association Juvenile Justice Center and Mid-Atlantic Juve- nile Defender Center, 2003). And 90 percent of youth interviewed for the

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ACCOUNTABILITY AND FAIRNESS 201 2003 assessment in Maryland reported not knowing their lawyer’s name. In Indiana, more than half of the youth interviewed felt they did not have adequate time to consult with their lawyers (National Juvenile Defender Center and Central Juvenile Defender Center, 2006). In some counties in Washington, lawyers reported not using investigative support in any of their cases; statewide lawyers reported investigating only 50 percent of their cases (American Bar Association Juvenile Justice Center et al., 2003). The paternalistic culture of the juvenile courtroom further interferes with zealous advocacy by juvenile lawyers during the pretrial and adju- dicatory phases. For example, observers in Montana noted that zealous advocacy was met with hostility from judges, probation officers, and pros- ecutors, whereas other defenders who did not “rock the boat” were greeted positively (American Bar Association Juvenile Justice Center, 2003). In Kentucky, lawyers advocating for the “best interest of the child” engaged in little, if any, motions practice or trial preparation and did not seem to believe that delinquency cases warranted the use of investigators or experts (American Bar Association Juvenile Justice Center, 2002). Finally, in a nationwide survey conducted by the American Bar Association, only 30 percent of juvenile attorneys said they filed pretrial motions (Jones, 2004). To improve the quality of representation and enhance the youth’s percep- tion of justice, states must clarify the duties and obligations of juvenile defense counsel at every stage of the case. To this end, several states have adopted attorney practice standards that clearly delineate the lawyer’s duties regarding investigation, client interviews, motions practice, and pre- trial preparation (Burrell, 2012). High Rates of Guilty Pleas Meaningful participation in juvenile proceedings is often foreclosed to youth by the high rates of guilty pleas. Juvenile defenders face consider- able systemic opposition to zealous advocacy of the child’s stated interest and experience considerable pressure from judges and other legal actors to convince their clients to plead guilty (Mlyniec, 2008). As documented in a 2006 survey of juvenile courts, most juvenile cases are resolved by guilty pleas (Mlyniec, 2008). In Montana, for example, one judge reported that he only had 2-3 trials a year and defenders stated that cases rarely go to trial (American Bar Association Juvenile Justice Center, 2003). Although pleas will often be a favorable option for youth and may demonstrate their sense of accountability, they are often ill-informed about the decisions and implications of pleading guilty (see, e.g., Kaban and Quinlan, 2004). Lawyers fail to adequately explain options to the youth, and judges and lawyers speak to youth in complicated, legal language in client-counseling sessions and plea colloquies. Significant reforms are needed in the plea

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202 REFORMING JUVENILE JUSTICE process to ensure that youth truly understand options available to them, have a meaningful choice about whether or not to plead guilty, and do not admit to having committed offenses they did not commit. At a minimum, client-counseling dialogues and plea colloquies should be conducted in age-appropriate language and youth should be afforded adequate time to understand information provided to them. Appropriate Role of Counsel The mere appointment of counsel does not ensure that youth will receive the quality representation to that which they are entitled, nor does it ensure that youth will have a meaningful opportunity to be heard in juvenile proceedings. Juvenile courts that are overly paternalistic have a crippling effect on the youth’s right to participate. Too often, lawyers for juveniles see themselves as advocates for the youth’s best interests instead of the youth’s stated or expressed wishes or interests (e.g., American Bar Association Juvenile Justice Center, 2003). The lawyer may follow the views of parents or other adults, assuming that the youth lacks the capacity and good judgment to make important legal decisions in a delinquency case. In other cases, lawyers may subvert the youth’s meaningful participation in decision making by withholding or manipulating information provided to the youth, controlling the content and sequence of meetings, limiting topics of conversation, or narrowing the alternatives from which the youth may choose (Henning, 2005). Attorneys may also undermine client autonomy and decision making by speaking in legalese, framing issues in a narrow and limiting fashion, or strategically arranging the list of options to exaggerate or emphasize negative or positive outcomes. Lessons drawn from effective parenting styles (see Laursen and Collins, 2009) and fair family decision-making processes (see Fondacaro, Dunkle, and Pathak, 1998) are instructive for lawyers who must establish rela- tionships with youth and parents in the juvenile justice system. Although parents are important allies for youth in a juvenile case, lawyers for juve- niles must ensure that the parents’ voice is not used to silence the youth. An attorney who defers entirely to the parent misses critical insight from the client, undermines the accuracy of juvenile court outcomes, and com- promises the developmental value that would be gained from allowing the youth to meaningfully participate and be heard. The potential for conflicts of interest between youth and their parents further militates against allow- ing the parents’ voice to substitute for that of the client (Henning, 2006). Given Woolard and colleagues’ (2008) findings that youth who antici- pate they will not be treated fairly or receive help from their lawyers are less likely to comply with authorities, it is essential that lawyers become loyal and committed advocates who fairly represent the youth’s voice in

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ACCOUNTABILITY AND FAIRNESS 203 delinquency cases. Youth in the juvenile justice system generally have iden- tifiable values and goals that are entitled to due weight and respect in court, especially as they relate to the issues of liberty and other important rights. Children as young as 10 or 12 will have the ability “to understand, deliberate upon, and reach conclusions about matters affecting [their] own well-being” (American Bar Association Model Rules of Professional Con- duct R. 1.14 comment 1, 2012). Cognitive capacity varies widely among children and adolescents, and reasoned decision making is an acquired skill that varies according to context, experience, and instruction (see Steinberg et al., 2009). A youth who is well counseled in the trusting and safe envi- ronment of a lawyer’s office may render thoughtful, well-reasoned insight even if he is likely to exercise poor judgment and make bad choices on the street or in peer-to-peer interactions (Henning, 2005; Steinberg et al., 2009a). The youth’s decision-making capacity and voice may be enhanced by the lawyer’s ability to create an appropriate environment for counseling, build rapport with the youth over time, engage the youth in one-on-one, age-appropriate dialogue, and repeat information as many times as the youth needs to hear it (Henning, 2005). By giving youth the opportunity to express views about important decisions in the juvenile justice system, law- yers may provide them with an opportunity to try on and enhance newly acquired decision-making skills and moral judgment (Buss, 2004). Respect- ing the youth’s voice does not mean that he or she will be allowed to decide legal outcomes, only that they will be heard and meaningfully considered. Delinquency hearings are adversarial proceedings in which the judge makes the final decision about detention, innocence, and disposition. The youth’s voice is but one of many in the court’s calculus, but a concerted effort to elicit the youth’s views and preferences promotes healthy legal socialization. Disposition The need for counsel and the opportunity to participate is no less impor- tant at the disposition hearing than at other stages of the case. As the Supreme Court noted in Gault (1967, p. 38) “in all cases children need advocates to speak for them and guard their interests, particularly when disposition deci- sions are made. . . . It is the disposition stage at which the opportunity arises to offer individualized treatment plans and in which the danger inheres that the court’s coercive power will be applied without adequate knowledge of the circumstances.” Reports across the country suggest that the quality of legal representation is especially uneven at the disposition stage. According to some reports, lawyers defer heavily to the views of juvenile probation officers and do little to bring the youth’s voice and perspective to the court’s attention (Mlyniec, 2008; see, e.g., American Bar Association Juvenile Justice Center and Mid-Atlantic Juvenile Defender Center, 2003).

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204 REFORMING JUVENILE JUSTICE The youth’s opportunity to meaningfully participate in the disposition hearing is particularly relevant to his or her legal socialization and sense of accountability. Studies in the psychology of choice indicate that individu- als who make choices for themselves engage more effectively in the reha- bilitative process and with greater satisfaction (see Winick, 1998). Youth who design or actively participate in the development of their own treat- ment plans may have greater motivation to follow through and succeed (see Wexler, 2000). Paternalism, by contrast, is antitherapeutic because it breeds apathy, hinders motivation, and limits the potential for rehabili- tation (see Winick, 1999). Thus, a youth who feels shut out or treated unfairly in a decision-making process that affects him or her may refuse to follow through with recommendations and court orders for counseling, probation meetings, curfew, and other treatment requirements made by a judge who has never heard or considered the youth’s views (see Fagan and Tyler, 2005). Youth who anticipate that they will be treated unfairly in the legal system will also be less likely to disclose important information about themselves and their case (Woolard, Harvell, and Graham, 2008). Without critical insight from the youth, the diagnostic team assigned to develop the disposition plan is likely to rely on an inaccurate or incomplete picture of his or her needs. It is particularly important to draw on the evidence summarized in Chapter 6 in designing and implementing developmentally oriented pro- cesses and dispositions in the juvenile justice system. For example, juvenile courts should involve families of youth at the disposition phase as con- structively as possible to assist youth accept responsibility and to carry out whatever obligations are imposed by the court’s dispositional order. Their opinions should be solicited regarding their needs, recommendations, and preferences for the youth’s treatment. The youth’s views should also be solicited during the proceedings (National Council of Juvenile and Family Court Judges, 2005, p. 135). Postdisposition Youth are held accountable long after the disposition hearing, yet they often lose the right to be heard after the disposition has been imposed. Law- yers frequently terminate representation after disposition and thus are not available to advise or advocate for youth in important postdisposition mat- ters, such as probation revocation proceedings, appeals, early release from detention, or relief from poor conditions of confinement (Mlyniec, 2008). According to a state assessment in Indiana, for example, most juvenile attorneys believed their responsibility to clients ended after the disposition order was entered (Mlyniec, 2008). As a result, almost 57 percent of youth interviewed said they were not told of their right to appeal, and 77 percent

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ACCOUNTABILITY AND FAIRNESS 205 said they did not discuss any possible issues on appeal. In Ohio, attorneys were not sure whether they had an obligation to provide postdisposition representation. And 41 percent of those interviewed claimed representation ended after the disposition hearing; 49 percent believed that representa- tion continued until the disposition order was fulfilled. Given the rights at stake following disposition and the likely impact on the youth’s percep- tion of procedural justice, efforts should be made to ensure that youth are adequately represented from arrest through termination of juvenile court jurisdiction. Measures of Perceived Fairness Given the importance of the youth’s perception of fairness, state offices of judicial administration should develop survey instruments and other qualitative methods for ascertaining the youth’s attitudes toward and per- ceptions of the judicial process and experiences with the justice system. Once developed and evaluated, such survey measures can help juvenile courts assess an important aspect of system performance. Surveys of this kind are in their infancy and have some methodological issues to overcome (Henderson et al., 2010), but research to date is informing legal proceedings in the mental disabilities field (Swanson et al., 2006) and has potential for the juvenile justice field as well. Various national organizations, such as the National Center for State Courts and the National Conference of Juvenile and Family Court Judges, should help state courts develop and implement measures of perceived fairness. In short, holding the youth accountable for his or her actions is a key aim of the juvenile justice system, one that should be examined closely, measured, and enhanced to make these interventions more developmentally appropri- ate and to enhance their effectiveness. As discussed earlier in the chapter, the same approach should be taken toward school discipline (see Box 7-1). RECENT INNOVATIONS IN ACCOUNTABILITY The committee attempted to identify innovations in juvenile court adjudication and other official disciplinary systems that have been grounded in a scientific understanding of legal socialization and moral development. Although initiatives by individual judges and attorneys were mentioned, the only two programmatic innovations that have been systematically imple- mented and evaluated are restorative justice programs and teen courts. We describe these activities below as promising illustrations of developmentally informed innovations, although it is premature to recommend either of them based on the current evidence. Developmentally informed training of law enforcement personnel, judges, and attorneys could also make an

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206 REFORMING JUVENILE JUSTICE important contribution, but very little evidence now exists describing or evaluating such activities. Restorative Justice Programs A variety of juvenile justice programs have been developed under the rubric of “restorative justice” to encourage the development of account- ability on the part of juvenile offenders (Braithwaite, 1989; Bazemore and Umbreit, 1998; O’Brien, 2000) These programs, implemented in the United States and elsewhere, are aimed at involving the adolescent, the victims of crime, and the community in resolving the violation of community norms that has occurred. The use of restorative justice practices has been described as a “developmental aid” in promoting mature accountability. It does so by bringing the impact of one’s behavior on other people into focus (as opposed to the abstract idea that the offense is “against the state”). Doing so is thought to promote deeper reflection on the injury to the victim and enhance motivation for change. These practices are comparable to those described as “scaffolding” from Vygotsky’s theory on the zone of proximal development, which highlights the difference between what a learner can do without help and what a learner can do with help (Vygotsky, 1978). Sanctioning practices include victim–offender mediation and various com- munity decision-making or conferencing processes (Bazemore and Day, 2002). Community service is often integrated into this approach as a way for the adolescent to make amends for his or her criminal violation. Proponents of restorative justice argue that this approach provides a strengths-based, experiential model for identity change, one that can pro- mote a realignment of self-image through reintegration into the community (Bazemore and Erbe, 2003). These proponents also highlight the potential for restorative justice practices to contribute to the recovery of victims who have been traumatized and to thereby reduce the risk of future offending by victims (Achilles and Zehr, 2001). The argument is that when offenders are held accountable in an integrative, prosocial way, constructive accountabil- ity serves both the offender’s and the victim’s needs. The general principles guiding the restorative justice movement (accountability, community safety, and competency development) have often been adopted as guidelines for orienting broader systems of juvenile justice. In many states, the principles of balanced and restorative justice have been adopted to guide program development, probation practice, and court dispositions (Office of Juvenile Justice and Delinquency Prevention, 1997a). Adopting these principles has often shifted the emphasis of the juvenile justice system toward more of a concern with community involvement and alternative interventions, focus- ing more on adolescent skill development than on more sanction-oriented approaches (Griffin, 2006).

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ACCOUNTABILITY AND FAIRNESS 207 Restorative justice programs are philosophically compatible with the general approach to juvenile justice reform envisioned in this report. Among the aims of holding adolescents accountable for their wrongdoing is inculcating fundamental norms of social morality, including the obliga- tions to respect the rights and interests of the community, to take personal responsibility for one’s conduct, and to rectify any harms that one may have caused to others. Restorative justice programs appear to represent laudable efforts to operationalize these principles without relying on the concepts and prac- tices of punishment. However, evaluating the impact of restorative justice interventions is difficult, given that it is not totally clear what constitutes a restorative justice program. A variety of interventions go under this name because they are guided by the general principles of this approach. However, whether a family conferencing meeting, for example, is follow- ing procedures that meet these guidelines is difficult to determine, because these standards are not rigorously defined. Moreover, restorative justice approaches may include a number of different specific elements (e.g., victim conferences, restitution, making amends), and which of these constitute the core elements of this approach are not specified. Thus, it is not surpris- ing that randomized controlled studies (in which data are analyzed based on assignment rather than completion of programs to eliminate effects of self-selection) of the effectiveness of restorative justice interventions have generated mixed findings. A summary of 36 direct comparisons (including six studies involving juvenile offenders) of restorative justice practices to conventional criminal justice practices indicates that restorative justice reduces repeat offending for some offenders, but not all (Sherman and Strang, 2007). The evidence reviewed in this summary suggests that restorative justice interventions are more likely to reduce future offending and improve outcomes for victims when they are focused on the kinds of offenses that have an individual vic- tim who can be invited to meet with the offender and when they are focused on violent crime. Given that the examinations of restorative justice have involved small, randomized trials, there is a key evidence gap on its scaling up. It is unclear what would happen if restorative justice were delivered on a widespread basis, rather than in small pilot groups that affect a small fraction of cases in any local justice system. Aside from its focus on changing behavior (to reduce recidivism), participation in restorative justice programs and conferences has ancil- lary effects on offender attitudes (see Umbreit et al., 2011, p. 276). In a review of four face-to-face restorative justice conferences in Australia and the United Kingdom, Strang and colleagues (2006) reported signifi- cant changes in victim and offender attitudes and emotions in the periods before and after the conference. Finally, in their review of restorative justice

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208 REFORMING JUVENILE JUSTICE throughout the world, Sherman and Strang (2007) noted that restorative justice conferences provided victims and offenders with more satisfaction with justice than traditional criminal justice experiences and further that restorative justice conferences reduced the desire among crime victims for violent revenge. Additional research on the impact of these programs on legal socialization is warranted. Teen Courts Teen courts offer a dispositional alternative to the traditional juvenile justice system in which the juvenile offenders’ teenage peers hear facts sur- rounding the incident, deliberate, and determine a disposition, which often includes community service or alcohol or drug treatment. They are based on the assumption that adolescents are more likely to be influenced by their peers as opposed to adult authority figures in the formal juvenile justice system (Butts and Buck, 2000). The well-documented finding that one of the strongest predictors of future acts of delinquency is the presence of delinquent peer associations (Snyder, Horsch, and Childs, 1997; Brendgen ­ et al., 1999; Houtzager and Baerveldt, 1999; Newcomb et al., 1999) speaks to the role that peers play in socializing youth and provides the basis for the idea that peer pressure can be used to not only reinforce young people’s delinquent behavior, but also to lead them out of delinquency. In this way, teen courts are designed to circumnavigate the pitfalls associated with adolescents’ hypersensitivity to fairness and dominating perceptions of being mistreated by those in positions of authority (Matsueda, 1988) and to capitalize on the adolescents’ desire for peer acceptance and approval. Definitive studies about teen court outcomes have not been con- ducted (Butts et al., 2012), although there are numerous examples of positive results from teen court evaluations (Minor et al., 1999; Harrison, M ­ aupin, and Mays, 2000; Garrison, 2001; LoGalbo and Callahan, 2001; P ­ atrick and Marsh, 2005). Results are positive even when evaluations have included repeat offenders (Butts, Buck, and Coggeshall, 2002; Forgays and DeMilio, 2005; Forgays, 2008; see Harrison et al., 2000, for opposite findings), although the risk of recidivism has been found to increase with amount of time postcompletion (Rasmussen, 2004). However, the selec- tion process of teen court participants has been shown to be biased (see Lanthier, 2006) in ways that could skew the results on the effectiveness of teen court participation. For example, Lanthier (2006) found that family status in the community was the strongest significant predictor of refer- ral to teen court. Other factors would no doubt be fairer determinants of teen court placement, and they might also be more predictive of success. Smith and Blackburn (2011) argue that referrals of youth should instead ­ be based on the likelihood that they will respond to positive peer influence,

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ACCOUNTABILITY AND FAIRNESS 209 and they have begun to develop a tool to identify youth who are more likely to succeed in a teen court setting; more research is needed, however, to evaluate both the psychometric properties and the predictive validity of this screening tool. Of note, Smith and Blackburn (2011) found that younger teen court participants had more positive perceptions about peer influence and teen court than older participants, which could be due to developmental characteristics or a greater likelihood that older youth have more delinquent peer associations. Research is needed to evaluate whether older youth are more likely than younger youth to offend after teen court, and, if this is found to be true, the factors that mediate this relationship, so that those youth who are more likely to succeed in a teen court setting can be identified in advance by fair and accurate methods. SUMMARY Contemporary law reforms emphasize the importance of holding juve- niles accountable for their criminal offenses. This is not a new theme— advocates for punitive reforms criticized the traditional juvenile court for its failure to hold youth accountable and aimed to correct this supposed deficiency. However, accountability does not require a moral model of retributive justice, as many advocates of “get-tough” policies seemed to assume. To be sure, accountability requires taking responsibility for one’s own behavior and undertaking corrective action, but it does not entail the condemnatory messages and labels associated with “criminal” responsibil- ity. Nor does holding youth accountable necessarily entail the use of con- finement and other explicitly punitive sanctions. Condemnation, control, and confinement—the identifying attributes of criminal punishment—are not necessary features of accountability for juve- niles, do not deter or prevent reoffending, and should be avoided except in rare instances. Confinement (“serving time”) should not be used, in itself, as an instrument of accountability in the juvenile justice system, although courts may sometimes find it necessary to restrain youth who pose a high risk of harming others or themselves or to use short-term detention for the purpose of deterring and responding to serious offending. Interventions aiming to hold youth accountable must be firm and fair and informed by developmental knowledge, designed to improve the youth’s future prospects rather than harming them. In short, juvenile justice must focus on the harm that the juvenile may have caused without harming the juvenile in response. Developmental knowledge also suggests that the principle of account- ability itself, if carefully implemented, can play a role in reducing juvenile offending—an important function not linked to accountability in earlier periods. This chapter has shown that being held accountable for one’s

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210 REFORMING JUVENILE JUSTICE wrongdoing and accepting responsibility for it are integral to the normal processes of social learning, moral development, and legal socialization during adolescence. If designed and implemented in a developmentally informed way, procedures for holding adolescents accountable for their offending by the juvenile justice system and other disciplinary authorities can promote positive moral development and promote respect for law. It must also be recognized, however, that processes of juvenile accountability, if perceived by youth as unfair, can reinforce social disaffection and nega- tive attitudes toward law and legal authority. Thus, it is essential that police officers and other legal actors interact with youth in a way that is fair, inclusive, and respectful and that juvenile courts employ decision-making processes that provide youth with a meaningful opportunity to participate and be heard. Ensuring genuine access to developmentally informed counsel is an essential element of a reformed juvenile justice system. Designing and implementing effective mechanisms of accountability is one of the key chal- lenges of juvenile justice reform in the 21st century. Several recent reforms based on developmental principles, such as restorative justice programs and teen courts, have yielded promising results, and further innovation is indicated. Every aspect of the justice system’s interactions with the adolescent— from a street encounter with a police officer through intake, petition, adjudication, disposition, and discharge from court supervision—should be viewed through a developmental lens. Throughout the process, juvenile jus- tice professionals affect the youth’s legal socialization and moral develop- ment through their demeanor, their framing of the legal situation, and their interactions with the youth and the family. The formal process of adjudi- cating wrongdoing and holding adolescents accountable for their wrongful choices can, if carried out properly, foster and reinforce the achievement of key developmental tasks, thereby nurturing healthy legal socialization and reduce the likelihood of future offending. By emphasizing the importance of the processes of juvenile accountabil- ity, we do not mean to denigrate the formal events of the judicial process. To the contrary, the finding of guilt on the delinquency petition is a solemn and developmentally significant event. So too are the court’s dispositional orders and any hearings that may subsequently be required to monitor and enforce compliance. If detention or custodial placement is ordered, the experience of a loss of freedom can have a penetrating impact on the identity and self-image of the youth. As noted earlier, however, these formal tools of accountability should be used as instruments of legal socialization and moral development, not as instruments of punishment.