2

Historical Context

Juvenile justice policy in the United States has evolved since the first juvenile court was established in Chicago in 1899. In this chapter, we characterize this evolution as four stages or periods of reform (Beuttler and Bell, 2010; Scott and Steinberg, 2010). Although there has been much overlap and continuity, and others might describe the history of the juvenile court differently during each of these periods, policy makers adopted an approach to juvenile crime that was different in important ways from the perspective and policies of other periods.

The first stage, which persisted into the 1960s, embodied the rehabilitative vision of the Progressive Era founders of the juvenile court (Lindsey and O’Higgins, 1970). These reformers viewed young offenders as innocent children and saw youthful criminal activity as symptomatic of an impoverished social context. Under the rehabilitative model, the purpose of correctional interventions was to provide the treatment young offenders needed to avoid a life of crime.

The second period of juvenile justice reform in the 1960s and 1970s was driven by the belief that the juvenile court was failing in its rehabilitative mission and that young offenders were actually being harmed by its paternalistic approach (Allen, 1964; Handler, 1965). Beginning in the 1960s with the landmark Supreme Court opinion of In re Gault (1967),1 courts and legislatures introduced procedural due process into juvenile delinquency proceedings. Lawmakers in this period recognized that a jus-

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1 In re Gault, 387 U.S. 1 (1967).



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2 Historical Context Juvenile justice policy in the United States has evolved since the first juvenile court was established in Chicago in 1899. In this chapter, we char- acterize this evolution as four stages or periods of reform (Beuttler and Bell, 2010; Scott and Steinberg, 2010). Although there has been much overlap and continuity, and others might describe the history of the juvenile court differently during each of these periods, policy makers adopted an approach to juvenile crime that was different in important ways from the perspective and policies of other periods. The first stage, which persisted into the 1960s, embodied the rehabili- tative vision of the Progressive Era founders of the juvenile court (Lindsey and O’Higgins, 1970). These reformers viewed young offenders as inno- cent children and saw youthful criminal activity as symptomatic of an impoverished social context. Under the rehabilitative model, the purpose of correctional interventions was to provide the treatment young offenders needed to avoid a life of crime. The second period of juvenile justice reform in the 1960s and 1970s was driven by the belief that the juvenile court was failing in its reha- bilitative mission and that young offenders were actually being harmed by its paternalistic approach (Allen, 1964; Handler, 1965). Beginning in the 1960s with the landmark Supreme Court opinion of In re Gault (1967),1 courts and legislatures introduced procedural due process into juvenile delinquency proceedings. Lawmakers in this period recognized that a jus- 1  In re Gault, 387 U.S. 1 (1967). 31

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32 REFORMING JUVENILE JUSTICE tice system that aims to protect youth and promote their welfare must also adhere to the principles of justice and deal fairly with young offenders. By the late 1980s, a harsher attitude toward juvenile crime had emerged, leading to a third period of policy reform, which lasted through the 1990s. Some even referred to youthful offenders as “super-predators” who posed a serious threat to public safety (Dilulio, 1995). During this period, the foundational premise of juvenile justice policy—that delinquent youth were different from adult criminals in ways that influenced their criminal conduct and should guide appropriate dispositions—seemed to carry little weight (Regnery, 1985). Lawmakers across the country radically reformed juvenile crime policy to facilitate the adult prosecution and punishment of young offenders and increase the length of confinement for those who remained in the juvenile system (Zimring, 1998). By 2000, the vision and commitments that led to the establishment of a separate juvenile justice system seemed to have disappeared, and some critics suggested that the system was obsolete and should be abolished altogether (Feld, 1998b). In the past decade, policy makers and the public have had second thoughts about this harsh approach, and the country has moved toward a fourth period of juvenile justice reform. Many factors have contributed to widespread dissatisfaction with the policies of the past generation and to an interest in a less punitive response to youth crime. First, juvenile crime rates have been relatively low. Second, incarceration-based policies have strained state budgets, a burden that became more onerous during the economic recession of 2008-2009 and the period of anemic growth that has followed. More importantly perhaps, mounting evidence indicates that imposing harsh sentences on young offenders is unlikely to reduce reoffending or contribute to public safety in the way that supporters of get-tough policies assumed; indeed, sending youth to prison may increase the likelihood of recidivism (Task Force on Transforming Juvenile Justice, 2009). At the same time, a growing body of research on adolescent development, particularly brain development, has captured the attention of courts (including the U.S. Supreme Court) and policy makers. This research reinforces the conven- tional wisdom that adolescents are different from adults in ways that affect their criminal conduct, and it has probably contributed to the reemergence of less punitive attitudes toward juvenile offenders. Moreover, treatment programs in nonsecure settings that are based on developmental knowledge and implemented with fidelity have been shown to be effective in reducing crime at a lower cost than incarceration (Henggeler, Melton, and Smith, 1992; Aos et al., 2001; Aos, 2002; Barnoski and Aos, 2004; Greenwood and Turner, 2011). In response, some states have repealed laws mandating transfer to adult court, and others have raised the general age of criminal court jurisdiction. In three important opinions, the Supreme Court held that imposing the

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HISTORICAL CONTEXT 33 most severe punishments on juveniles violates the ban on cruel and unusual punishment under the Eighth Amendment of the Constitution, sending a powerful signal that adult punishment of juveniles is problematic on moral grounds. The Court in these opinions emphasized that juveniles, because of their developmental immaturity, are less culpable than adults and therefore deserve less punishment.2,3,4 At the same time, states and localities have embraced evidence-based programs, sometimes shifting resources from expensive institutional facili- ties to communities (Bray, 2009). In general, pragmatic policy makers care about holding youth accountable for the harms they cause, but they also want to adopt effective programs that reduce crime at the lowest cost. These conditions create an opportunity to implement reforms grounded in scientific knowledge that serve the public interest as well as the interests of the youth involved in criminal activity. FOUR STAGES OF JUVENILE JUSTICE REFORM Stage One: The Rehabilitative Model The establishment of the juvenile court was at the heart of the Progres- sive Era social reforms of the late 19th and early 20th centuries. In Chicago, progressive reformers such as Jane Addams sought to promote the welfare of poor immigrant children and, in 1899, established the first juvenile court in pursuit of this goal (Howell, 1997; Beuttler and Bell, 2010). Before this time, most youth charged with crimes were tried and punished as adults; only very young children were not held criminally responsible (Walkover, 1984). Whether based on mixed or benign motivations, an important Progressive Era goal was to define a role for the state as the protector of children—and to shift the boundary of childhood to include adolescents in that protection (Mack, 1909; Van Waters, 1925). Aside from the juvenile court, other important progressive reforms included compulsory school attendance and child labor laws (Davis et al., 2008). In promoting the juvenile court, the reformers envisioned a system that aimed to promote the welfare of youth involved in crime as well as those who had suffered abuse and neglect by their parents. Indeed, abused and delinquent children were described in similar terms; delinquent youth were thus often depicted as innocent children who had gone astray because their (usually immigrant) parents had failed them (Lindsey and Borough, 1931). 2  Roper v. Simmons, 541 U.S. 1040 (2005). 3  Graham v. Florida, U.S. Supreme Court, 560 U.S. (2010) (Slip Op., at 23). 4  Miller v. Alabama, U.S. Supreme Court, 567 U.S. (2012).

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34 REFORMING JUVENILE JUSTICE The rehabilitative model was the foundation of the juvenile court and shaped its operation until the late 1960s. Criminal responsibility had no place in the jurisprudence of juvenile justice; the purpose of delinquency dispositions was to rehabilitate young offenders and not to punish them for their crimes (Mack, 1909; Lindsey and O’Higgins, 1970). Thus, although the purpose of delinquency proceedings was to respond to alleged criminal conduct, the original architects of the juvenile court insisted that it did not conduct criminal trials. Indeed, the traditional juvenile court was hardly a court at all. Because its announced purpose was diagnosis and prescription rather than adjudication and punishment, the proceedings were not adver- sarial (Lindsey and O’Higgins, 1970). Youth in delinquency proceedings were not afforded (and were presumed not to need) the procedural rights that are deemed essential to protect criminal defendants facing prosecution by the state. These include the right to an attorney, the right to confront witnesses, and the privilege against self-incrimination. Without attorneys testing the state’s evidence and enforcing the rights of the accused, delin- quency adjudications were informal proceedings (Stapleton and Teitelbaum, 1972). This informality was reflected in the qualifications of juvenile court judges, many of whom lacked legal training. Under the rehabilitative model, judges prescribed individualized treat- ment based on the needs of the offender, presuming that treatment would correct youthful criminal tendencies. Consistent with the court’s reha- bilitative purpose, dispositions were indeterminate and open-ended; in theory, rehabilitation should end when the child was “cured” (Davis et al., 2008). Furthermore, the duration of dispositions bore no necessary rela- tion to the seriousness of the offense. The principle of proportionality, like criminal responsibility, had no place in delinquency proceedings, and judges exercised broad discretion, ordering dispositions they deemed appropriate (Paulsen, 1957; Allen, 1964; Glueck, 1964). At one level, the Progressive Era reformers were very successful in accomplishing their mission; between 1899 and 1925, every state estab- lished a separate juvenile court for dealing with youth charged with crimes—a remarkable institutional transformation (Dawson, 1990; Davis et al., 2008). However, the traditional juvenile court and the rehabilitative model on which it was based began to crumble in the 1960s. From the left and the right, critics claimed that the court’s rehabilitative mission had never been achieved (Allen, 1964; Handler, 1965; Regnery, 1985; Dawson, 1990). Child advocates argued that the juvenile court harmed the youth whose interests it claimed to serve, and conservative critics emphasized its failure to protect the public from young criminals. These two challenges eventually led to successive waves of reform of juvenile justice policy in the last third of the 20th century.

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HISTORICAL CONTEXT 35 Stage Two: The Due Process Reforms In the 1960s, youth advocates argued that adolescents charged with crimes were getting a bad deal from a juvenile justice system that osten- sibly was designed to serve their needs (Allen, 1964). The system failed to provide young offenders with the promised treatment, but the myth of rehabilitation continued to be offered as justification for denying juveniles the procedural rights of adult criminal defendants (Paulsen, 1957; Glueck, 1964; Handler, 1965). Juveniles charged with crimes had no right to an attorney, and the informal hearings in which their guilt was determined lacked the rigorous evidentiary protections of a criminal trial; on the basis of often casual fact-finding, many youth were adjudicated delinquent and sentenced to dispositions in prisonlike facilities (Allen, 1964; Handler, 1965). Ultimately, the Supreme Court agreed with critics that youth in the juvenile system had the worst of both worlds.5 In In re Gault, the Court extended many of the procedural rights enjoyed by criminal defendants to juveniles facing delinquency charges in juvenile court. The case of Gerry Gault represented a stark example of the deficiencies of the rehabilitative model of juvenile justice. Fifteen-year-old Gerry was accused of making lewd phone calls to his neighbor. He was brought before a juvenile court judge without notice of the charge or an attorney to defend him. The neigh- bor never appeared as a witness; instead, the arresting officer reported her complaint to the judge. At the end of the proceeding, the judge committed Gerry to the Arizona State Industrial School for up to six years—for a mis- demeanor for which an adult would receive, at most, a $50 fine and jail term of up to 12 months. In Gerry’s case and many others, the outcome of an informal nonadversarial delinquency proceeding was a potentially severe deprivation of liberty. The Supreme Court rejected the state’s justification for the court’s informality. Writing for the Court, Justice Abe Fortas called the proceed- ings a “kangaroo court” (In re Gault at 28).6 He observed that delinquent juveniles got little rehabilitation and that the high rates of recidivism among juvenile offenders showed that whatever treatment they received was inef- fective. The Court in Gault held that youth in delinquency proceedings faced a serious loss of liberty and therefore were entitled to protection under the due process clause of the Fourteenth Amendment of the Consti- tution. Like adult criminal defendants, juveniles have a right to counsel, a right to notice of charges, a right to confront witnesses against them, and a privilege against self-incrimination. The introduction of due process 5  In re Gault, 387 U.S. 1 (1967). 6  Ibid.

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36 REFORMING JUVENILE JUSTICE (and particularly of attorneys) brought greater formality and regularity to delinquency proceedings. It says much that these reforms were initiated by child advocates who argued that the rehabilitative model, which insistently focused on the objec- tive of promoting children’s welfare, actually harmed youth who came before the court (Paulsen, 1957; Allen, 1964). What the liberal critics realized was that this idealistic purpose obscured a tension at the heart of the rehabilitative model. The state’s interest in responding to youth crime was more complex than the architects of the juvenile court acknowledged. When a young offender has intentionally caused social harm, the state’s announced interest in promoting his welfare is in tension with powerful if unexpressed conflicting interests in public protection and accountability (Scott and Steinberg, 2010). In criminal proceedings, it is well under- stood that the state’s interest is adverse to that of the defendant; it is for that reason that the Constitution requires procedural protections (Allen, 1964; Scott and Steinberg, 2010). The child advocates who challenged the informality of delinquency proceedings realized that the juvenile system’s professed mission conflicted with these more conventional purposes of criminal justice. Had the “treatment” offered by the juvenile system been effective, the tension might have been manageable. But policy makers and elected offi- cials were increasingly frustrated by evaluations of rehabilitative programs that failed to generate strong and consistent effects (Martinson, 1974). As Justice Fortas pointed out, 66 percent of youth referred to juvenile court were recidivists (In re Gault at 28).7 But when dispositions failed to reha- bilitate young offenders, courts not surprisingly lost confidence in rehabili- tation and imposed more restrictive and punitive correctional interventions. The rehabilitative model’s inherent weakness eventually became clear to those who aimed to promote the interests of children; youth adjudicated without procedural protections were at the mercy of judges who were free to punish them while claiming to act in their best interests. The procedural changes mandated by the Supreme Court in Gault and later opinions8,9 had a powerful impact on juvenile justice policy, transforming delinquency proceedings into adversarial hearings. Most importantly, juveniles after Gault have a right to be represented by attorneys, who can challenge pros- ecutors’ evidence and raise defenses. During the adjudicative stage of the proceeding, as in a criminal trial, the prosecutor is required to prove that the youth committed the crime beyond a reasonable doubt. In contrast to the informal practice of the traditional court, the juvenile court judge is no 7  Inre Gault, 387 U.S. 1 (1967). 8  Inre Winship, 397 U.S. 358 (1970). 9  Breed v. Jones, 421 U.S. 519 (1975).

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HISTORICAL CONTEXT 37 longer free to question the juvenile about his conduct unless the juvenile waives his rights. Although adherence to the rules of evidence is somewhat less rigorous in juvenile proceedings, in many regards they became similar to criminal trials in the post-Gault era. The extension of procedural rights to juveniles in delinquency hearings proceeded with little attention to the question of whether juveniles were competent to exercise their rights. This may be due to an implicit assumption that the level of competence required for a juvenile to function as a defendant in a delinquency proceeding is less demanding than that required of an adult facing prosecution (Scott and Grisso, 2005). But adjudicative competence became a key issue in the 1990s as more youth were tried in criminal court. These due process reforms made sense, of course, only if rehabilitation were not the sole aim of the hearings. But the due process reforms did not constitute an explicit rejection of the juvenile system or even of rehabilita- tion as one of its goals.10 During the dispositional stage of the delinquency proceeding, courts are expected to exercise discretion and to respond to the individual needs of offenders. Although the due process reformers chal- lenged the rosy characterization of young offenders as innocent children, they supported the proposition that juveniles were different from adults and should receive different treatment in the justice system (Zimring, 1978; Shepherd, 1996). In the 1970s and 1980s, most juveniles continued to be dealt with in a separate system in which dispositions continued to have a rehabilitative focus. Nonetheless, the due process revolution created a conceptual vacuum, by destabilizing the rehabilitative model that had provided a coherent rationale for a juvenile justice system and borrowing adversarial proce- dures and sanctions from the adult criminal justice system. In the 1970s and 1980s, a few law reform groups responded by offering a new model of juvenile justice—one that emphasized accountability and public protection but retained a commitment to lenience and a concern for the needs of young offenders (Zimring, 1978, 1998; Shepherd, 1996). The Juvenile Justice Standards, an ambitious law reform project, sponsored by the Institute for Judicial Administration and the American Bar Association, emphasized the importance of expansive procedural protections for youth in delinquency proceedings and challenged the tradition of discretionary dispositions. The standards envisioned proportionate but lenient sanctions, which for most youth could be undertaken in their communities (Singer, 1980). But before this new approach could become established, youth advocates lost control of the law reform process. A third wave of reform took hold that explicitly rejected the goal of rehabilitation, along with the assumption that young offenders were different from adults in ways that were important to justice 10  McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

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38 REFORMING JUVENILE JUSTICE policy. Ironically, the procedural reforms that youth advocates had pro- moted appeared to support the legitimacy of an adversarial regime that ignored developmental differences between juveniles and adults. Stage Three: Getting Tough on Juvenile Offenders The sweeping legal reforms in the 1980s and 1990s resulted in juvenile justice policies quite different from both the traditional rehabilitative model and the due process model of the 1960s and 1970s. This third period of reform was triggered by an increase in violent juvenile crime, particularly homicide, in the late 1980s that generated hostility and fear of young offenders. Advocates for the punitive reforms offered a dramatically revised account of delinquent youth; no longer were they depicted as wayward children whose welfare was a key concern to the justice system. Indeed, an important theme of these reforms was that young offenders were not dif- ferent from their adult counterparts in ways that were relevant to criminal responsibility or to the justice system’s response to their crimes. Youthful immaturity might warrant a more lenient response toward youth engaged in petty criminal conduct, but those who committed serious (and particularly violent) crimes should be punished as adults (Doherty, 1998). The mantra of punitive reform, “adult time for adult crime,” captured the sentiment of the period (Wagman, 2000). Public concern about violent juvenile crime was an important (and legitimate) catalyst for reform during this period, but the legal changes were often undertaken under conditions that had the hallmarks of a “moral panic” (Cohen, 2002; Goode and Ben-Yehuda, 2009; Howell, 2009). Young offenders were characterized as super-predators who posed a grave threat to society—a threat that advocates predicted would worsen unless drastic mea- sures were taken (Dilulio, 1995; Fox, 1996). In several states, legal changes followed high-profile juvenile crimes—school shootings (as in Arkansas following the Jonesville shootings) or gang killings of innocent bystanders. The media focused on these incidents, politicians expressed grave concern, and the public responded with alarm—­ontributing to an increasingly c urgent sense that “something must be done” (Scott and Steinberg, 2010). ­ Legislatures in turn rushed to pass laws that would respond to the concerns expressed by their constituents to protect the public and punish young offenders. Legitimate concerns about public safety became exaggerated in response to salient incidents or political campaigns, so that in some states harsh laws were enacted even though youth crime had been declining for several years. In pushing for major legal reform, critics targeted the juvenile court for its ineffectiveness in controlling crime (Zimring, 1998). As mentioned ear- lier, beginning in the 1970s, critics pointed to mounting evidence that cor-

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HISTORICAL CONTEXT 39 rectional programs were ineffective at reducing crime (Martinson, 1974). But disillusionment with the juvenile system was particularly acute. Many observers (including much of the public, according to many polls) thought the juvenile court’s lenient treatment of young offenders and failure to hold them accountable for their criminal offenses encouraged youthful criminal activity (Flanagan and Maguire, 1991). Juvenile court judges were assumed to be too soft on young offenders, punishing them with slaps on the wrist and sending them back to the streets to offend again (Sprott, 1998; Zimring, 1998). It seems clear that a lack of confidence in the juvenile court played a key role in exacerbating the fear of juvenile crime and fueling the reforms of this period. Around the country, reformers used several legislative strategies to facilitate the prosecution and punishment of juveniles as adults. First, laws governing the juvenile court were amended to facilitate judicial transfer of youth to criminal court and to expand the category of youth eligible for trial as adults (Torbet et al., 1996). Under traditional laws in most states, the transfer hearing functioned as a safety valve to exclude from juvenile court jurisdiction the occasional older youth charged with a serious violent felony who was deemed not amenable to treatment as a juvenile, thereby acknowledging that not every youth could be rehabilitated in the justice sys- tem (Wagman, 2000). During the period of punitive reforms, the category of transfer-eligible youth was expanded substantially to include young adolescents and even children (Wagman, 2000). For example, by 2000, 10-year-old youth charged with murder could be prosecuted and punished as adults in most states, and, in a large minority of states, there is no mini- mum age of transfer at all (Office of Juvenile Justice and Delinquency Pre- vention, 1995b; Griffin et al., 2011). Moreover, whereas traditional statutes focused on the maturity of the youth and his or her lack of amenability to treatment in the justice system, the new generation of statutes ignores or discounts these factors, emphasizing instead the seriousness of the charged crime (Feld, 1988). Finally, some statutes limit judicial discretion by creat- ing presumptions favoring transfer for certain offenses. Although many more youth became eligible for transfer in the wake of these reforms, another legal reform that expanded during this period has had a far greater impact on the adjudication of youth in adult court. Under “legislative waiver” or automatic transfer statutes, juveniles of a designated age are categorically excluded from juvenile court jurisdiction and tried as adults when charged with particular serious offenses (Torbet et al., 1996). For example, under California law, a 14-year-old charged with murder or rape is automatically prosecuted as an adult (California Welfare and Insti- tutions Code, 2000). Between 1992 and 1995, 24 states either created or expanded (by adding more crimes) legislative waiver statutes (Torbet et al., 1996). These statutes implicitly shift the discretionary power to determine

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40 REFORMING JUVENILE JUSTICE whether a youth will be tried as a juvenile or as an adult from the juvenile court judge to the prosecutor (who can decide whether to charge the waiv- able offense instead of a less serious crime in juvenile court). Under “direct file” statutes, another reform adopted in some states, prosecutors have explicit discretionary authority to charge juveniles as adults or as juveniles (Office of Juvenile Justice and Delinquency Prevention, 1997b). Moreover, in several states, the minimum age of general adult criminal court jurisdic- tion is set at 16 or 17 (Griffin et al., 2011), an age at which adolescents are legal minors for most other purposes. In New York, for example, all 16-year-olds are dealt with in the adult system.11 Together, these reforms have resulted in a substantial increase in the number of youth tried as adults to 250,000 per year by most estimates (National Center for Juvenile Justice, 2011). Many states also have expanded the range of offenses that can make youth eligible for criminal court adjudication. Traditionally, only youth charged with the most serious violent crimes (murder, rape, kidnapping, aggravated assault) could be tried as adults. Today, many statutes include long lists of transferrable offenses or crimes subject to automatic waiver; some states allow transfer for any felony (Torbet et al., 1996; Feld, 1998). Thus, although supporters of the punitive reforms emphasized the threat to public safety posed by violent youth, legislative reforms undertaken in a climate of moral panic have resulted in laws facilitating criminal prosecu- tion of youth for nonviolent felonies as well. Indeed, more than half of the youth in prison in the 1990s were convicted of property and drug offenses (Puzzanchera et al., 2004). Public and political hostility toward young offenders also had an important impact on the operation of the juvenile justice system (Sprott, 1998). Despite (or perhaps because of) the criticism of the juvenile court’s excessive leniency, dispositions became much harsher during this period, with greater use of secure placement and longer periods of time. Moreover, some states introduced so-called blended sentencing, under which youth adjudicated in juvenile court who received lengthy sentences would be committed to a juvenile facility but upon turning 18 could complete their sentence in an adult prison (Duggan, 1999). The punitive reforms of juvenile justice policy in the 1980s and 1990s responded to a legitimate concern; violent youth crime rates were high and, in the eyes of many policy makers and the public, the response of the juvenile justice system appeared to be inadequate. But extensive legal and policy changes were often undertaken with little deliberation in a climate of fear, and they were broader in scope than the concerns that triggered the reforms. Moreover, these legal challenges represented a radical departure 11  New York Family Court Act § 301.2(1).

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HISTORICAL CONTEXT 41 from the law’s conventional approach toward minors generally. In virtu- ally every other domain, a core assumption guides policy—that children and adolescents differ from adults in critically important ways and that society has an obligation to nurture their healthy development to adult- hood. It is also assumed that promoting child welfare furthers the interest of society (Scott, 2000). They rejected the relevance to justice policy of the developmental differences between adolescents and adults—not questioning the efficacy or fairness of punishing juveniles as adults (Wagman, 2000). Moreover, they apparently assumed that the interests of society were wholly adverse to those of young offenders, who were portrayed as predators and enemies of society (Dilulio, 1995). Reformers saw harsh policies as the only means to protect the public from the threat of youth crime, paying little attention to the longer term consequences of these policies (Zimring, 1998; Scott and Steinberg, 2010). The punitive reforms that effectively dismantled the rehabilitative model of juvenile justice did not proceed unchallenged. Youth advocates persisted in promoting traditional policies, but in the 1990s researchers and major private foundations also began to challenge the wisdom of criminal- izing juvenile justice. For example, the Annie E. Casey Foundation under- took a national program of alternatives to detention, and in the mid-1990s the John D. and Catherine T. MacArthur Foundation launched a 10-year research network to study differences between juveniles and adults relevant to justice policy (Mendel, 2009; John D. and Catherine T. MacArthur Foun- dation, 2011). An important study sponsored by MacArthur indicated that ­ younger juveniles might be incompetent to participate in criminal proceed- ings because of their developmental immaturity (Grisso et al., 2003). Mean- while, a growing body of research indicated that evidence-based treatment programs implemented with fidelity to their design might be far more effec- tive in changing youth behavior than incarceration (Henggeler, Melton, and Smith, 1992; Aos et al., 2001; Barnoski and Aos, 2004). Although these developments did not have an immediate impact, they paved the way for rethinking juvenile justice reform during the first decade of the 21st century. Stage Four: A Window of Opportunity for Rethinking Juvenile Justice By the mid-1990s, juvenile crime rates began to decline, and by 2004 youth crime rates were at a two-decade low (Snyder and Sickmund, 2006). Although supporters might argue that the harsh legal response caused the decline, juvenile crime rates had begun to decline long before the era of punitive reforms ran its course. A new attitude toward adolescent offenders and juvenile crime emerged, along with a reevaluation of incarceration- based correctional policies. The underlying premise of the juvenile court— that juvenile offenders are different from adult criminals and that the justice

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42 REFORMING JUVENILE JUSTICE system should treat them differently—seems to be reemerging. Today, policy makers have the benefit of recent scientific knowledge about adolescence and about the features of effective interventions, knowledge that can pro- vide a sounder basis for policies than was available to early 20th-century reformers. Several pragmatic considerations have influenced lawmakers to revise their approach to youth crime. One is that the high costs of incarceration- based policies adopted in the 1990s have become increasingly clear, with escalating juvenile justice expenditures straining state budgets across the country (Aos, 2002; Aos et al., 2006). These costs became more onerous with the economic recession in 2008, forcing difficult trade-offs between corrections and other government programs. Moreover, states increasingly had good reason to question the social value of the costly reforms and to ask whether resources could not be better expended elsewhere. Recidivism rates were high for youth coming out of prison and juvenile institutions, suggesting that policies based heavily on incarceration were not serving their avowed purpose of protecting the public and reducing crime (Harp and Walker, 2007; Task Force on Transforming Juvenile Justice, 2009; Lippman, 2010). At the same time, a growing body of evidence, including comprehensive benefit-cost analyses, indicated that some community-based programs were effective at reducing recidivism—and at a much lower cost than incarceration (Aos et al., 2001). In combination, these factors have contributed to a new wave of policy initiatives and to a rethinking of juve- nile justice policy. The 1990s reforms were also challenged on racial justice grounds in the early years of the new century, when it became clear that minority youth received disproportionately harsh treatment in many states. In Illinois, for example, a statute mandating transfer for 15-year-olds charged with selling drugs overwhelmingly resulted in adult prosecutions of African American youth (Illinois Juvenile Justice Commission, 2005). The statute was repealed in 2005. In a Georgia case that received national publicity, a 17-year-old African American youth, Genarlow Wilson, received a 10-year prison sentence for aggravated child sexual molestation on the basis of con- sensual oral sex with a 15-year-old white girl. The sentence generated angry protests of racial bias and was reversed on the ground that it was excessive by the Georgia Supreme Court.12 Thereafter, the legislature amended the law to make the crime a misdemeanor (Joyner, 2007). The recent characterization of juvenile offenders in legal and policy contexts and by the media provides striking evidence of a change in atti- tude. Seldom is the term “super-predator” used today. Instead juvenile offenders are described as youth whose criminal activity is the product of 12  Wilson v. State, 282 Ga. 520 (2007).

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HISTORICAL CONTEXT 43 developmental immaturity (Wallis, 2004; Huff, 2007; Schrader, 2007). To some extent, this change in the public image of young offenders might sim- ply represent the reemergence of deep-seated benevolent attitudes toward minors that were obscured during the “get tough” period of the 1990s. But today, scientific knowledge about adolescence informs a more sophis- ticated account of juveniles and their criminal activity than was available to reformers in earlier periods. This account not only does not support the traditional depiction of juveniles as children who bear no responsibility for their crimes, but it also clarifies that young offenders are quite dif- ferent from their adult counterparts in ways that influence their criminal activity and response to correctional interventions. Lawmakers, from local and state government to the U.S. Supreme Court, increasingly accept that young offenders are adolescents and that their developmental immaturity is important to justice policy (Wallis, 2004). A substantial body of research over the past generation (see Chapter 4) supports this new understanding of young offenders. Many behavioral studies show that psychosocial factors associated with adolescence may influence adolescent decision making in ways that contribute to criminal activity (Scott and Steinberg, 2010). These include susceptibility to peer influence, poor impulse control, sensation-seeking, and a tendency to focus on immediate rather than future consequences of choices. The impact of this research in the policy arena has been amplified by recent studies of ado- lescent brain development that have begun to shed light on the biological underpinnings of some of these psychosocial influences on decision making (see Chapter 4). Politicians and the public appear to give substantial weight to developmental neuroscience research, even at an early stage, and it is often invoked by policy makers in support of differential policies toward juvenile offenders (Begley, 2000; Wallis, 2004; Schrader, 2007). The Supreme Court has relied on developmental research in three recent opinions prohibiting the use of the harshest criminal penalties with juvenile offenders. In a 2005 opinion, Roper v. Simmons,13 the Court held that the use of the death penalty for a crime committed by a juvenile was a violation of the Constitution’s prohibition of cruel and unusual punishment under the Eighth Amendment. The Court drew heavily on psychological research in reaching the conclusion that juveniles, because of their devel- opmental immaturity, were not sufficiently blameworthy to be subject to a punishment reserved for the worst offenders. Five years later, in Graham v. Florida,14 the Court extended its analysis to the sentence of life without parole for a nonhomicide offense. Like Roper, Graham emphasized that the immaturity of youth makes their crimes less reprehensible than those of 13  Roper v. Simmons, 541 U.S. 1040 (2005). 14  Graham v. Florida, U.S. Supreme Court, 560 U.S. (2010) (Slip Op., at 23).

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44 REFORMING JUVENILE JUSTICE adults and suggested that juvenile offenders cannot be assumed to be irre- deemable. Graham pointed to developments in psychology and brain sci- ence that “continue to show fundamental differences between juvenile and adult minds” (at 2026). Most recently, in Miller v. Alabama,15 the Court again drew on developmental psychology and neuroscience in holding unconstitutional a mandatory sentence of life without parole for homicide. Although the holdings of Roper, Graham, and Miller affect a relatively small category of young offenders, these opinions carry great symbolic importance. Following a long period in which the differences between juvenile and adult offenders were either ignored or denied as irrelevant to criminal punishment, the opinions are forceful statements by America’s highest court that young offenders are different from and less culpable than adults. The Court bases this opinion not on conventional wisdom, but on developmental psychology and neuroscience research. Some states have retreated from laws facilitating the adjudication of juveniles in adult court. For example, Washington State repealed an auto- matic transfer law enacted in 1994 and narrowed the category of offenses eligible for transfer,16 and Illinois, as mentioned, abolished a statute man- dating adult prosecution of 15-year-olds charged with selling drugs near schools (Illinois Juvenile Justice Commission, 2005). Connecticut raised the general age of criminal court jurisdiction from 16 to 18, following a cam- paign that emphasized the developmental immaturity of young offenders­ and the need to separate them from adults (Connecticut Juvenile Jurisdic- tion Planning and Implementation Committee, 2007). Some states have abolished sentences of life imprisonment without parole altogether for juve- niles. In Colorado, Governor Bill Owens explained his support for abolition by pointing to research suggesting a link between immature adolescent brain development and youthful criminal activity (Moffeit and Simpson, 2006). Some states have also enacted statutes that facilitate the assessment of competence to stand trial of juveniles,17 addressing concerns that some youth, because of their immaturity, may be unable to function adequately as defendants in criminal trials or, in some cases, even in juvenile adjudi- cations (Bonnie and Grisso, 2003; Scott and Grisso, 2005). The upshot is that adult adjudication and punishment of young offenders has lost some of its appeal in recent years and differences between youth and adults have become more salient in the policy arena. Several jurisdictions also have systematically reduced the number of youth confined to institutions, shifting resources to community-based pro- grams that have been shown to reduce recidivism (Bray, 2009; National 15  Miller v. Alabama, U.S. Supreme Court, 567 U.S. (2012). 16  HB 1187, 59th Leg. Reg. sess. (Washington, 2005). 17  Virginia Code Ann. Section 16.1-356.

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HISTORICAL CONTEXT 45 Center for Juvenile Justice, 2011). A 2009 governor’s task force report in New York evaluated the state’s troubled juvenile institutions, in which youth (most convicted of misdemeanors) were confined at a cost to citizens of $210,000 a year. The report sharply criticized the system’s punitive approach, which “damaged the future prospects of these young people, wasted millions of taxpayers’ dollars and violated the fundamental princi- ples of positive youth development” (Task Force on Transforming Juvenile Justice, 2009, p. 8). After the report was issued, New York City officials announced that the number of city delinquents sent to state institutions would be drastically reduced (Bosman, 2010). (See Chapter 9 for a detailed discussion of federal, state, and local jurisdictional reforms.) Around the country, enthusiasm for evidence-based community pro- grams and practices has become a dominant theme in juvenile justice reform. These programs seek to contribute to the healthy development of delinquent adolescents by enhancing key elements of their social environ- ment and providing them with the tools to deal with environmental influ- ences that have contributed to their criminal activity. The combination of the crime-reducing potential of these programs together with their lower cost, in comparison to institutional placement, has made them central to juvenile justice reform in many states. A DEVELOPMENTAL APPROACH Scientific research has played a significant role in influencing attitudes and in shaping policies and programs in juvenile justice reform over the past decade. First, research on adolescent development, particularly brain development, has been invoked to underscore that juvenile offenders are different from and less culpable than their adult counterparts—and that these differences should result in more lenient punishment of juveniles. This scientific knowledge challenges the core assumption driving the criminaliza- tion of juvenile justice policy in the last decades of the 20th century. Second, scientific research on adolescent psychosocial development has underscored the importance of social context to healthy development; this knowledge has informed the approach of evidence-based interventions and programs that have proven to be effective in reducing crime. Third, outcome research on these programs and on institutional placement of juveniles has been important in generating enthusiasm for evidence-based programs and has resulted in resource reallocation from institutions to communities. The current period of reform shares some general objectives with ear- lier periods, but its perspective on how key goals can best be implemented is importantly influenced by scientific knowledge not available to early reformers—and not deemed relevant to the punitive reformers of the 1990s. Thus, public safety and the reduction of crime continue to be critically

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46 REFORMING JUVENILE JUSTICE important policy objectives, but policy makers increasingly believe that incarceration may not be an effective means of accomplishing these goals with many youth (Task Force on Transforming Juvenile Justice, 2009). Instead, they are receptive to the crime-reducing potential of programs that address the developmental needs of adolescents (see Chapter 5). The presumption that the interests of society inherently conflict with those of young offenders is gradually yielding to a view that delinquent youth and society have convergent interests that can be realized through interventions that support the development of young offenders into law-abiding adults. Moreover, while contemporary policy makers continue to emphasize the importance of holding youth accountable for their crimes, scientific knowl- edge about adolescence now informs the meaning of this principle; account- ability is less likely to be interpreted to mean “adult time for adult crime.” It is also understood that holding youth accountable for their crimes func- tions to inculcate norms of personal responsibility, and thus it may have an important role in preventing future offending (see Chapter 6). The current period of juvenile justice reform bears some similarity to the traditional rehabilitative model. Contemporary policy makers express more benign sentiments toward juvenile offenders than would have been heard a generation ago, and confidence in evidence-based programs is sometimes equated with a revival of rehabilitation as a key goal of juve- nile justice. But the goal of rehabilitation is more closely linked to crime prevention than in the days of the traditional juvenile court. Moreover, developmental knowledge has undermined the Progressive Era myth that teenage offenders are children who lack criminal responsibility. Today it is accepted that adolescence is an intermediate developmental stage between childhood and adulthood and that justice policy should deal with most young offenders as adolescents. An important objective of the current period—a growing commitment to substantive fairness in the adjudication of juveniles—is also grounded in modern developmental knowledge but has its origins in the due process reforms of the 1960s and 1970s. Neuroscience and behavioral research supports the intuition first offered by reformers in the 1970s that the crimi- nal acts of juveniles are less culpable than those of adults, and that young offenders deserve less punishment than their adult counterparts (Zimring, 1978). Proportionality is a core principle of a fair system of criminal pun- ishment (Bonnie, Coughlin, and Jeffries, 2010), but it was given short shrift in the 1990s (Steinberg and Scott, 2003). This has changed; the recent Supreme Court opinions emphasize the reduced culpability of juveniles, and this lesson has had far-reaching impact. Several states have raised the juris- dictional age or restricted their transfer laws in recent years, recognizing that the adult prosecution and punishment of juveniles should be reserved

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HISTORICAL CONTEXT 47 for a narrow category of older youth charged with particularly serious offenses or who have been chronic offenders. Concerns about procedural fairness have also become increasingly salient, as courts and legislatures have realized that youth may need special protections when they face law enforcement and adult prosecution (Scott and Grisso, 2005). Several states have created procedures for evaluating the competence to stand trial of juveniles, in response to research indicating that younger teens may be unable to participate effectively in their defense in criminal proceedings (Grisso et al., 2003). Moreover, very recently the Supreme Court held that the age of a young suspect must be a factor in evaluating whether police questioning is “custodial.”18 In general, policy makers have recognized that juveniles in the justice system differ from adults in important ways, and this has challenged them to reconcile policies with principles of fairness. Recognition of the important differences between adolescents and adults and the other social and legal developments described in this chapter have distinct implications for policy making in the two key domains of juvenile crime policy—the design and operation of the juvenile justice system and the treatment of juveniles in the criminal justice system. The committee’s charge focuses exclusively on reforming the juvenile justice system, and the report accordingly does not address the policies and practices of criminal courts toward young offenders (the setting for the Supreme Court’s influen- tial decisions over the past decade). Nor does the report undertake a com- prehensive review of the still-controversial issues relating to the boundaries between the juvenile and the criminal justice systems; the circumstances under which adolescents should be subject to criminal court jurisdiction are mentioned only when necessary to draw out the implications of findings and conclusions reached about the juvenile justice system.19 18  JDB v. North Carolina, 131 S. Ct. 2394 (2011). 19  See Loeber and Farrington (2012) for a review of offending careers during the age period between midadolescence and early adulthood (roughly ages 15-29) and the implications of this research for juvenile and criminal justice systems.

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