Should Juveniles Be Tried as Adults Argumentative
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As many as 200,000 youths charged with crimes today are tried in adult courts, where judges tend to be tougher and punishments harsher — including sentencing to adult prisons. But with juvenile crime now on the decline, youth advocates are seizing the moment to push for major changes in iron-fisted juvenile justice systems nationwide. Above all, they want to roll back harsh state punishments — triggered by the crack cocaine-fueled crime wave of the late 1980s and early ’90s — that sent thousands of adolescents to adult courts and prisons. Many prosecutors say the get-tough approach offers society the best protection. But critics say young people often leave prison more bitter and dangerous than when they went in. Moreover, recent brain studies show weak impulse control in young people under age 18, prompting some states to reconsider their tough punishments. Prosecutors respond that even immature adolescents know right from wrong.
Washington, D.C., lawyer Matthew Caspari has developed some strong feelings about punishing teenage criminals since last August. That’s when he wrestled with a knife-wielding 17-year-old who’d been harassing one of his neighbors on Capitol Hill.
Caspari had been taking a walk with his wife and their 6-month-old daughter when he saw a neighbor in trouble. As he was calling 911, the young man threatened him, and they began to fight. When Caspari’s dropped cell phone picked up his wife’s screams, police raced to the scene and arrested the man.
But what happened afterwards was equally disturbing, Caspari told a City Council hearing in October. After a Family Court judge released the youth while he awaited sentencing, he was back on the street hanging out with a tough crowd, Caspari said. That’s why he said he opposed legislation to rescind the U.S. attorney’s sole power to try teenagers 15 and older in adult court for violent crimes.
“Family Court is no deterrent,” said Caspari. “Punishment and consequences are simply not taken seriously by the offenders. If you want to instill a sense of accountability in these teens and provide therapy and services — there’s no reason why you can’t provide that in the adult system — while protecting the community.”
Alice Smith takes her son Erik home after his release from a juvenile prison in Corsicana, Texas, last year. She said Texas Youth Commission prison guards stood by while he was physically abused by other inmates. Last year the Dallas Morning News revealed brutality, sexual abuse of inmates and cover-ups at several commission facilities. Abuses have also been revealed at juvenile correctional facilities in California, Maryland and other states in recent years. (AP Photo/LM Otero) Democratic Councilman Phil Mendelson, who is co-sponsoring the proposal to reign in the U.S. attorney, says statistical evidence shows adult-court prosecution tends to reinforce — rather than diminish — young offenders’ criminal tendencies.
“The inclination is, if somebody commits a crime, particularly a violent crime, then lock ’em up,” Mendelson told the hearing. “And the research shows that is statistically counterproductive.”
Mendelson’s comment echoed the views of a growing number of juvenile justice experts and activists. With violent juvenile crime trending downward for the past 13 years, they say it’s time to replace the tough sentences that state lawmakers enacted in the 1980s and ’90s and handle more youth cases in juvenile court. The hard-line policies reflected skyrocketing juvenile crime and the prediction — later proved baseless — that violent, young “superpredators” would take over the nation’s inner cities.
The get-tough measures eased the transferring of juveniles to adult courts where they faced tougher sentences. Some states allowed prosecutors to “direct file” juvenile cases in adult court; others left the decision to a judge, or made transfers automatic for certain charges.
But standards differ on when courts legally recognize that adulthood begins. In most states — especially those striving for more rehabilitation — 18 is the threshold age. In 10 states — Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, New Hampshire, South Carolina, Texas and Wisconsin — teens become adults at 17; in New York and North Carolina, it’s 16.
Experts say they haven’t determined how many convicts are serving time for crimes committed before they were 18. But the Campaign for Youth Justice, a Washington-based advocacy group, estimates that on any given day 7,500 youths under 18 are in jail or awaiting trial or transport to prison or juvenile detention.
Adult court sentences often are tougher than those in juvenile courts. Until 2005, they could include the death penalty, which the U.S. Supreme Court then banned for anyone who committed a capital crime before turning 18.
The backdrop to that decision was a decline in youth crime, and the drop continues. According to the most recent statistics, the 2007 arrest rate for youths ages 10-18 was down to fewer than 300 per 100,000 — the same level as in 1982.
To counter assertions by prosecutors that tougher laws brought crime rates down, opponents of harsh penalties point to studies showing that juveniles tried as adults come out of prison more dangerous than when they went in, and hence more prone to become adult criminals. A nationwide Task Force on Community Preventive Services, appointed by the U.S. Centers for Disease Control and Prevention, concluded in late 2006: “Overall, available evidence indicates that use of transfer laws and strengthened transfer policies is counterproductive for the purpose of reducing juvenile violence and enhancing public safety.” (continued below)
Indeed, at a recent conference on juvenile rehabilitation at the Brookings Institution, Bart Lubow, director of programs for high-risk youth at the Annie E. Casey Foundation, said the punitive laws of the 1980s and ’90s had “resulted in the criminalization of delinquency.” The Baltimore-based nonprofit is advising 100 cities and counties on how to reorganize their juvenile systems so that they rely less on incarceration.
Many prosecutors say they also want to channel more juveniles into detention alternatives — but not all of them.
In Oregon, says Clatsop County District Attorney Joshua Marquis, “We went from an extreme — ‘everyone needs a hug and cup of Ovaltine’ — to a more nuanced system. Delinquents who need a minimum of incarceration and a maximum amount of structure get treated one way. And then there are the young criminals who for all intents and purposes are young adults — they don’t act like children, don’t respond like children and you can’t treat them like children.”
Oregon voters approved the present system in 1994, when the tough-on-crime approach was sweeping the nation. Measure 11 stiffened sentences for certain violent offenses and applied them to defendants as young as 15.
By 2003, 31 states had passed laws requiring juveniles charged with certain crimes to be tried as adults. Also during the ’90s, 13 states lowered the top age for juvenile court jurisdiction to 15 or 16. As a result, the number of inmates serving life without parole for crimes committed when they were under 18 began climbing; today 2,484 youthful offenders are serving such sentences.
But rollback advocates have scored a few successes. Connecticut last year raised its age threshold for adult court from 16 to 18. In 2006, Colorado abolished juvenile life without parole. In addition, several states have restricted adult-court transfers, and advocates are readying legislation for introduction in other states next year.
Hard-liners can claim some victories as well. This year, a California proposal to abolish life without parole for juveniles failed to get the required two-thirds majority needed for passage. And in Colorado, Democratic Gov. Bill Ritter Jr., a former district attorney, vetoed a bill that would have stripped prosecutors of their sole authority to charge juveniles in adult court.
“They wanted to take away our discretion — there’s still a movement in our state to do that,” says Denver District Attorney Mitch Morrissey. “They wanted to have more hearings and more experts and cost a lot more money.”
Morrissey and other supporters of tough laws argue that prosecutors use them sparingly. In the suburbs of Minneapolis-St. Paul, Dakota County Prosecutor James C. Backstrom tells of resisting heavy pressure in 2006 to press for life without parole for two 17-year-olds who gunned down one of the boys’ parents in cold blood. Instead, the prosecutor accepted pleas to a charge that didn’t carry the no-parole proviso, giving them a chance to apply for release after 30 years.
“They knew right from wrong; there was no question they should be convicted of first-degree murder,” Backstrom says, “but they had no criminal history whatsoever. I just did not feel that locking them up for the rest of their natural lives was the right thing to do. They’ll have a chance to salvage some part of their lives. There were some strong disagreements, even from the victims’ family.”
Prosecutors everywhere can recall horrendous cases that warranted tough sentences. But rollback advocates argue such cases tend to obscure the fact that more than half of juvenile cases that end up in adult court don’t involve crimes against people.
“You could certainly say that when you expand the use of adult court transfer you are likely to capture more serious offenders,” says Jeffrey A. Butts, a research fellow at the University of Chicago’s Chapin Hall Center for Children. “But it’s a blunt instrument, so you pull a lot of youth into that pathway in the attempt to grab all serious offenders.”
According to the Justice Department’s Office of Juvenile Justice and Delinquency Prevention (OJJDP), about 51 percent of all 6,885 juvenile cases transferred (“waived”) to adult court in 2005 (the most recent figures available) involved “person” offenses — that is, crimes against individuals. The rest were property crimes (27 percent), drug offenses (12 percent) and public order violations (10 percent), such as weapons, sex or liquor violations.
No national statistics exist on the total number of juveniles tried in adult court. The closest estimate, based on calculations by Butts, is 200,000 a year.
To be sure, statistics don’t capture the nitty-gritty of crime in the streets. Lawyer Caspari says the teen who pulled a knife on him wasn’t eligible for transfer to adult court because Caspari was never cut or stabbed. But he could have been.
That’s why Caspari opposes allowing judges — instead of prosecutors — to send cases to adult court. The relative speed of the present system, he says, tells young offenders that they’ll be held accountable quickly. “The practical reality is the defendant’s lawyer can gum up the system by requesting it go back down to juvenile court, and that’s another nine months,” he says. “Is that the message you want to send to these kids?” (continued below)
As prosecutors and experts debate the nation’s juvenile justice policies, here are some of the key questions:
Should states roll back their tough juvenile crime laws?
When youth crime skyrocketed in the late 1980s and early ’90s, legislatures across the country took a new approach toward handling young people charged with crimes. Lawmakers carved out major exceptions to practices designed, broadly speaking, to rehabilitate rather than to punish.
“Today we are living with a juvenile justice system that was created around the time of the silent film,” Sen. John Ashcroft, R-Mo. (later U.S. attorney general in the first George W. Bush administration), complained to the Senate in 1997, reflecting a widely held sentiment. It’s a system “that reprimands the crime victim for being at the wrong place at the wrong time, and then turns around and hugs the juvenile terrorist, whispering ever so softly into his ear, ‘Don’t worry, the State will cure you.’ . . . Such a system can handle runaways, truants and other status offenders, but it is ill-equipped to deal with those who commit serious and violent juvenile crimes repeatedly.”
The new get-tough approach, adopted with variations in all states and Washington, D.C., focused on easing the process by which juveniles accused of homicide and other violent offenses could be tried in adult court. In some states, those convicted would do their time in adult institutions.
At least two states turned the corner ahead of the others. In New York, following two random murders by a 15-year-old in the New York City subway in 1978, the legislature gave automatic jurisdiction to the adult court system in violent crimes involving defendants as young as 13. Three years later, Idaho enacted a law that automatically sent youths 14 to 18 to adult court for murder and four other violent crimes.
A drop in violent crime by both adults and juveniles that began in the early 1990s and continued into the new century seemed to validate the hard-line laws. Yet, criminologists argued that the drop would have happened anyway for a variety of reasons, including the waning of the crack boom.
“Most systematic analyses show that the crime rate is much less sensitive to crime policy than most people think,” says Laurence Steinberg, a psychology professor at Temple University in Philadelphia and a specialist in adolescent development. In any event, he and others have said, juveniles handled in adult courts were more likely to return to crime upon release than those handled in juvenile court.
The effects of old-school confinement for young people is also being questioned in states that run juvenile institutions patterned on adult
prisons. In California, a state judge in February ordered the Corrections Standards Authority to improve its reporting on conditions at the institutions, which failed to cite beatings and other mistreatment that federal investigators had uncovered. And in Texas, a major scandal over sexual and other abuses led to enactment of a new law that imposes new standards on youth prisons, including removing juveniles charged with misdemeanors from the institutions.
Texas state Rep. Paula Pierson talks with an inmate at the Texas Youth Commission facility in Marlin in March 2007 in the wake of a scandal involving the sexual abuse of incarcerated youths. (AP Photo/Waco Tribune-Herald/Duane A. Laverty) Studies of juvenile recidivism often focus on adult court transfers. In a Justice Department-funded study in Florida, researchers reported in 2005 that 49 percent of juveniles transferred into the adult court system committed new crimes after release, compared with only 35 percent of the offenders who were kept in the juvenile system. Among violent offenders, recidivism ran to 24 percent and 16 percent, respectively.
“Juveniles exiting the adult criminal justice system are more likely — not less likely — to re-offend than juveniles who committed the same crimes and had comparable criminal histories,” Steinberg says. “And those coming out of the adult system re-offend sooner and more seriously.”
Young convicts who return from prison have serious effects on communities, Steinberg says. “Juvenile offenders have a lower success rate in the transition to adulthood than any other group of disadvantaged individuals,” he says. “Our current policy, which presumably is supposed to reduce crime, actually makes our neighborhoods more dangerous.”
But Oregon District Attorney Marquis says that juvenile advocates who focus on recidivism overlook a key fact — imprisoned criminals don’t hurt anyone while locked up. “Incapacitation” is the law-enforcement term for that outcome, and, “That’s not a small thing,” says Marquis, a member of the National District Attorneys Association’s Executive Committee.
Oregon’s Measure 11 requires long prison sentences for 16 violent and sex-related crimes for all perpetrators age 15 and older. “The most effective thing that is done, realistically, is incapacitation,” Marquis says. “In Oregon they actually counted up the number of people not raped, beaten or robbed as result of Measure 11.” According to Crime Victims United, a citizens’ group, the measure prevented 67,822 robberies, aggravated assaults, forcible rapes, manslaughters and murders through 2006.
However, a 2004 Justice Department-funded study by the nonprofit RAND Corp. concluded the incapacitation effect was lessened because more small-scale offenders were being imprisoned along with violent criminals. In 1994, 24 percent of the defendants sent to prison for the crimes that would later be covered by Measure 11 had clean records. In 1999, when the law had kicked in, 36 percent had no prior offenses.
Some leaders of the rollback movement favor certain exceptions. “I’d have no hesitancy even today to send some kids to adult court,” says Shay Bilchik, a former Miami prosecutor who now directs Georgetown University’s Center for Juvenile Justice Reform. “But that’s a small minority of cases, probably less than 5 percent of kids who get transferred.”
Prosecutors typically argue that a greater share of young offenders deserve transfer. “The changes incorporated in the juvenile codes in the early-to-mid-’90s were long overdue,” says Minnesota prosecutor Backstrom. “In most Minnesota jurisdictions, 1-2 percent end up in adult court.”
Did tough laws lower crime rates?
Juvenile crime began falling nationwide just as the last states to enact measures treating some juveniles as adult criminals were falling into line with the national trend.
The juvenile violent crime boom hit its peak in 1994. From that year to 1996, juvenile arrests for violent crimes declined by 12 percent, according to the Justice Department. Overall, juvenile arrests increased by 3 percent from 1995-1996, to 2.8 million, but drug crimes along with curfew violations and other “status” offenses largely accounted for the increase.
To be sure, the pattern didn’t hold true throughout the country, as is typical of all crime trends. And juvenile crime in the late 1990s remained far above its early-1980s level. Violent crime arrests began climbing steadily in 1988 — just as a virulent crack cocaine epidemic began hitting the nation’s inner cities — from about 350 per 100,000 10-to-17-year-olds in the population to a peak of about 525 per 100,000 in 1994. (continued below)
But the decline in juvenile crime continued well into the new century. In 1995-2004, arrests of suspects age 18 and under fell 22 percent. (Adult crime remained essentially flat, registering a 1 percent drop, during the same period.)
As early as 1996, Georgetown’s Bilchik, then head of the Justice Department’s Office of Juvenile Justice and Delinquency Prevention, noted that forecasts of an ever-rising wave of juvenile violence had been wrong. Instead, the crime numbers had started heading down. “The predictions of an onslaught of violent crime have been proven wrong two years in a row,” he wrote in the department’s annual statistical report, in a tacit swipe at the “superpredator” thesis.
As violent juvenile crime continues to decline, however, hard-liners cite the downward trend as evidence that the tough laws of the 1980s and ’90s delivered on their promise.
But even as the punitive approach took hold, some cities and counties used the flexibility in some laws to channel delinquents into rehabilitation-oriented programs. The outcomes have been positive, says the Annie E. Casey Foundation’s Lubow. “Nobody’s suffered, there’s been no great public safety risk.”
But backers of the tougher approach argue that juvenile crime responded to tougher laws just as adult crime trended downward in states that adopted laws requiring prison time after a third felony conviction.
“You can compare the result to adult crime after we passed the three-strikes law in California,” says Nina Salarno-Ashford, a former prosecutor who headed California’s Office of Victims’ Services. “We’re taking the worst off the streets, and it does lower re-offending. Some do recidivate, but the heavier sentences for top-end offenders help in the decline.” Salarno-Ashford’s family founded Crime Victims United after her older sister was murdered in 1979.
Rollback supporters note that, despite the tougher laws, an uptick of violent crime from 2004-2006 briefly interrupted the downward slide. “I would venture that few of these get-tough reformers are willing to take credit for the increase in crime that has taken place in the last several years,” Temple University’s Steinberg told the Brookings youth rehabilitation conference.
Some on the law-enforcement side of the debate agree that simple explanations for crime upsurges and declines should be treated with some skepticism. But supporters of the tougher laws say they’re willing to accept some uncertainty about what brought crime down — as long as it went down.
“Something’s working,” says Denver District Attorney Morrissey. “If it is because these laws got passed, and we treated violent offenders differently, I think that’s good to see. Fewer people are getting victimized.”
Morrissey says it would take a thorough statistical analysis to identify a direct connection between declining crime and a 1987 Colorado law that expanded prosecutors’ power to transfer juveniles to adult court. Just as important, he suggests, are Colorado’s rehabilitative programs for juveniles in detention institutions. “They tend not to go to prison” as adults, he says.
Crime-trend analysts on the youth advocate side of the debate have been arguing for years that the causes of crime surges and declines have little to do with law and policy changes. “If we go back to the 1970s and ’80s, when New York was expanding the use of adult courts and prisons for juveniles, do you see a corresponding decline for youth crime in New York? No,” says the University of Chicago’s Butts, summarizing research by criminologist Simon Singer of Northeastern University.
Conclusive cause-and-effect evidence is virtually impossible to find, Butts says. “You’d need a study that is impossible to do — take a big sample of youth who don’t know anything about criminal justice and expose some of them to information about adult transfer, and keep the others in a bubble,” he says. Tracking the number from each group who got into trouble with the law would provide definitive statistics, he says.
Does the prospect of facing the adult court system deter juveniles from crime?
A key argument for tougher laws holds that many young, potential criminals are scared “straight” at the thought of going to adult court — and possibly adult prison. (continued below)
“Proponents of the latest reform proposals espouse a philosophy of retribution and punishment — insisting that the juvenile court and its sanctions do not deter juvenile crime,” the Office of Juvenile Justice and Delinquency Prevention said in summarizing a 1996 conference in Washington.
In Idaho, the main author of a 1995 state law proclaims that the deterrent effect of his state’s tougher approach is palpable. “Before, it was no big deal to go to juvenile court,” says Republican state Sen. Denton Darrington. “Now, kids don’t like to go before a judge who has control over their lives. He has a lot of options at his disposal: He can bind them over to adult court. He can put them in a local juvenile detention center. He can put them on probation and dictate the terms.”
While the Idaho law stepped up penalties and eased the transfer of juveniles to adult court, it also expanded or created treatment programs for juveniles who weren’t sentenced to detention.
Darrington, who logged 33 years as a junior high school history teacher, says he’s certain young peoples’ determination to avoid the expanded juvenile system has played a major part in the juvenile crime decline. From 1994 through 2004, Idaho’s juvenile arrests fell 27 percent — from 23,170 to 16,747 — even as the under-17 population grew 8 percent — from 158,005 to 170,936.
The rollback advocates don’t quarrel with some aspects of the Idaho program and others that resemble it. But Idaho also allows imprisoning youths in adult prisons if they’re convicted in adult court, though that step isn’t mandatory.
But youth advocates draw the line at confining youths with adults, arguing that no deterrence or other purpose is served. “The more punitive the response, the more juvenile offenders re-offend,” says Temple University’s Steinberg. “Most crimes committed by juveniles are impulsive, stupid acts that occur when they’re with their friends, not calculated decisions. To be deterred by the prospect of a long sentence or incarceration or transfer into the adult system, an adolescent needs to think like an adult.”
Deterrence, however, isn’t the only rationale for keeping extremely severe penalties on the books. “With kids, the deterrent factor is less than with adults,” says Minnesota prosecutor Backstrom, accepting a main argument of youth advocates. “A lot of kids don’t think before they act.”
However, Backstrom says, where violent crime is concerned, “There needs to be accountability,” including any punishment short of the death sentence. “Life without parole for a kid would be used in a very limited set of circumstances, but there might be a case where it’s warranted. To remove the possibility would be wrong. Juveniles have tied up and tortured elderly people — I don’t agree with those who want to argue that people who do that shouldn’t be locked up for life.”
Some rollback proponents concede that some adolescents should be locked up, even in adult institutions. But focusing on extreme and relatively rare cases obscures a more important question: “The issue is whether the system is smart enough to distinguish high-risk kids from run-of-the-mill delinquents,” says Lubow at the Annie E. Casey Foundation.
“About a quarter-million kids whose offenses were committed under the age of 18 are prosecuted annually in the adult system,” Lubow says. “These are not, by and large, gang-banging, gun-wielding baby rapists. Are we better off for doing this? Do we deter kids from committing serious crimes?” The Centers for Disease Control study, among others, makes clear that the answer is no, he says.
But Oregon prosecutor Marquis says his contacts with adolescents leave no doubt that they’re well-informed about the law change. “I am astounded at how many kids know about this. Over and over I have heard, ‘They have a really tough law here in Oregon — you use a gun in a robbery, you get Measure 11.’ “
The evidence is conclusive, Marquis says. “Juvenile crime has had a huge drop in Oregon.” Statistics on the juvenile crime rate before and after Measure 11 took effect weren’t available. But adult crime (which, under the new law, includes serious offenses committed by anyone 15 and older) did drop by 27 percent from 1995 and 1999. By 2006, violent crime in Oregon had decreased to less than 300 crimes per 100,000 persons.
America’s young cities began growing in the early 1800s, largely because of waves of immigration. Given the desperate circumstances in which they arrived, and the long hours they worked, immigrants had little choice but to let their children roam the streets unsupervised. Not surprisingly, some got into trouble.
Alarmed at what they were seeing, early urban reformers established the forerunners of today’s juvenile detention institutions. The New York House of Refuge, founded in 1824, was the first. A group of prominent citizens established the Society for the Reformation of Juvenile Delinquents and persuaded the state legislature to create the facility for “boys under a certain age who become subject to the notice of our police, either as vagrants, or homeless, or charged with petty crimes.” They would be put to work, and given a basic education, “while at the same time, they are subjected to a course of treatment, that will afford a prompt and energetic corrective of their vicious propensities.”
Other cities, including Boston, Philadelphia and Baltimore, followed suit, but hope that “refuges” would put a big dent in juvenile crime proved ill-founded. The explosive growth of poor, often desperate, urban populations far surpassed the institutions’ capacities.
Some cities and states concluded they needed another way to house wayward children. The first “reform school” opened in Massachusetts in 1849, but such institutions also proved ineffective.
Meanwhile, civic reformers perceived another problem — children convicted of serious crimes were being imprisoned with adults because adult courts and prisons were the only institutions available. Pressed by concerned citizens who argued that government had a special duty to help juveniles mend their ways, the Illinois legislature in 1899 established the nation’s first juvenile court in Chicago. Later that year, Colorado lawmakers took the same step in Denver.
Illinois and Colorado also created a category of juvenile offenses seen as gateways to the criminal life, such as “truancy” and “growing up in idleness.”
Unlike in adult courts, lawyers and constitutional protections weren’t required in juvenile courts since judges would be acting in the juveniles’ best interests. Moreover, the courts’ stated goal wasn’t punishment but rehabilitation.
Judges essentially had unfettered discretion to devise “treatment plans” for juveniles that could leave them confined until they were classified as cured, or they turned 21.
By the 1960s, the juvenile court model was coming under growing challenge from liberals, who complained that young offenders not only were being denied legal representation but also other rights that adult defendants enjoyed.
Some of these concerns were addressed in a string of U.S. Supreme Court decisions beginning in the mid-1960s. Starting with the basic questions of young peoples’ due-process rights in juvenile courts, the high court eventually found itself grappling with perhaps the weightiest criminal-law issue of all for juveniles — the death penalty.
Before reaching that question, the court in 1966 laid the groundwork for extending adult rights to juveniles. The “essentials of due process” had to be provided to young people, the court said in its landmark Kent v. United States ruling. In his majority opinion, Justice Abe Fortas warned that juvenile courts were failing on all fronts: “There may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” The following year, the court’s In re Gault decision laid down specific requirements for juvenile court hearings in which defendants faced commitment to a detention center. In such cases, courts had to grant adequate notice of specific charges, notice of right to a lawyer, the right to confront witnesses and the right against self-incrimination.
Supreme Court decisions found an echo in Congress. The Juvenile Delinquency Prevention and Control Act of 1968 recommended — but did not require — that children charged with “status offenses” be dealt with outside the court system. Status offenses are acts that are illegal only for young people — buying cigarettes, for instance, or violating curfews.
Lawmakers toughened the law in 1974, making states’ eligibility for federal grants contingent on removing status offenders from detention, and on physically separating juvenile offenders from adults in jails and prisons. Congress amended the law in 1980 to require that juveniles be removed from all adult jails.
The Supreme Court, meanwhile, continued addressing juvenile justice issues. In its 1970 In re Winship decision, justices required states to prove delinquency cases beyond a reasonable doubt — the same standard required in adult criminal convictions. Breed v. Jones, in 1975, established that transferring juveniles to adult criminal court after they have been adjudicated in juvenile court constitutes double jeopardy — the unconstitutional practice of trying someone twice for the same crime.
But in 1984, in Schall v. Martin, the court approved pretrial, or “preventive,” detention. Holding a juvenile defendant thought to pose a risk of committing another crime isn’t a punishment, the justices concluded. Procedures were in place, they said, to protect young defendants from improper detention.
A 1985 Supreme Court decision (New Jersey v. T.L.O.) loosened Fourth Amendment protections for high school students, allowing school personnel to search students’ lockers and belongings if “reasonable grounds” exist to believe that a student has violated school rules or the law. In other circumstances, the search standard is “probable cause.”
But the high court began in the 1980s to take up the most morally and emotionally charged juvenile justice issue of all — the death penalty. Finally, following two decisions that limited capital punishment for juveniles, the court in 2005 banned the death penalty for defendants who were under 18 when they committed a capital crime.
A wave of sensational crimes committed by young offenders — followed by skyrocketing street violence spawned by a crack cocaine boom that began in the 1980s — sparked a new era in juvenile justice in the 1990s.
From 1975 to 1987, the number of juveniles arrested for violent crimes hovered around 300 arrests per 100,000 youths ages 10 to 18 in the population. But in the following seven-year period, 1987-1994, the rate rose by more than 60 percent, to about 500 arrests per 100,000.
Juvenile crime fell again, starting in 1994. By 2004, the juvenile arrest rate for violent crimes had dropped to 271 per 100,000. However, the new hardline laws remained in place. In 1996, juvenile courts handled about 1.8 million delinquency cases — more than four times the 400,000 cases in 1960.
The rapid adoption of the tougher approach reflected not only rising juvenile crime but the fear that far worse was coming. By the mid-1990s, some politically conservative academics attracted considerable publicity and political influence by declaring that a new breed of young “superpredators” was developing. John DiIulio, then a political science professor at Princeton University, coined the term, which soon gained currency.
Minnesota teenagers Matthew Niedere, left, and Clayton Keister, both 17, were convicted of shooting and killing Matthew’s parents. Supporters of tough laws for juveniles say the boys’ sentences support their argument that such laws are applied sparingly. Prosecutor James C. Backstrom resisted heavy pressure to seek life without parole for the pair, giving them a chance to apply for release after 30 years in prison. “I just did not feel that locking them up for the rest of their natural lives was the right thing to do,” he says. (AP Photo/Dakota County Sheriff) “Based on all that we have witnessed, researched and heard from people who are close to the action,” DiIulio and two co-authors wrote in 1996, “here is what we believe: America is now home to thickening ranks of juvenile ‘superpredators’ — radically impulsive, brutally remorseless youngsters, including ever more preteenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders.”
DiIulio’s co-authors were John P. Walters, now director of the Bush administration’s Office of National Drug Control Policy, and William J. Bennett, a prominent conservative who was Education secretary in the Reagan administration, and White House drug policy director under President George H. W. Bush. Five years later, however, DiIulio retracted the entire thesis, prompted by a downturn in juvenile crime — exactly the opposite of what he had predicted. DiIulio, who was then director of the White House Office of Faith-Based and Community Initiatives, said that he had a moment of revelation on the issue in 1996.
“I knew that for the rest of my life I would work on prevention, on helping bring caring, responsible adults to wrap their arms around these kids.”
Liberal youth advocates held DiIulio and his collaborators greatly responsible for the get-tough approach that prevailed in the ’90s. But it had been foreshadowed in the late 1970s in New York City by a teenager who seemed to fit the “superpredator” archetype.
In 1978, 15-year-old Willie Bosket robbed and murdered two subway passengers. Under state laws at the time, he was sentenced to five years in detention — the maximum he could receive in Family Court, where all defendants under age 16 were automatically sent.
State lawmakers quickly enacted the Juvenile Offender Law, which gave the state Supreme Court (equivalent to district courts in other states) original jurisdiction over 13-, 14- and 15-year-olds charged with violent crimes, with no exceptions.
Bosket, who called himself a “monster” created by the criminal justice system, was released from juvenile detention and later returned to prison for assault. There, he earned two life sentences for crimes committed behind bars, including the stabbing of a prison guard.
New York’s Juvenile Offender Law, enacted years before other states toughened their juvenile crime laws, remains the nation’s toughest, according to Jeffrey Fagan, a professor of law and public health at Columbia University. “The new law signaled a broad attack on the structure and independence of the juvenile court,” he wrote this year, “a major restructuring of the border between juvenile and criminal court that was repeated across the nation in recurring cycles for more than two decades.”
Other states that revamped their “transfer” laws took a variety of approaches. Fourteen states and Washington, D.C., allowed prosecutors to file charges directly in adult court, without judicial approval, for serious felonies, typically including murder and other “person” crimes — in which a human being, rather than an institution, is the victim.
Studying the Fallout
Virtually as soon as tougher laws took effect, academics and policy makers began researching how effective they were. Focusing on the expanded use of adult court for juveniles, nearly all the researchers concluded that the laws were counterproductive.
Fagan, now co-director of Columbia University’s Crime, Community and Law Center, conducted a study published in 1995 that compared re-arrest statistics of youths picked up for robbery and burglary in New York and New Jersey, where adult-court jurisdiction laws differed. He concluded that the New Yorkers, who had been transferred to adult court, were 39 percent more likely to be re-arrested for a violent crime than the New Jersey juveniles, who had been handled in juvenile court.
And among the New Yorkers who’d been sentenced to prison for more than a year, their recidivism rate for violent crime was twice that of the juvenile-court comparison group from New Jersey.
A study published in 2002 by the Florida Juvenile Justice Department found similar results when comparing youths transferred to adult court and those retained in the state’s juvenile system. The transferred juveniles showed a 34 percent higher recidivism rate.
Most other studies yielded similar data. But there were exceptions. Another Florida study published in 1997 found that youths transferred to adult court on property crime charges showed lower recidivism than counterparts arrested for similar crimes and kept in the juvenile system.
Overall, however, the Task Force on Community Preventive Services, appointed by the U.S. Centers for Disease Control, concluded: “The weight of evidence shows greater rates of violence among transferred than among retained juveniles; transferred juveniles were approximately 33.7 percent more likely to be re-arrested for a violent or other crime than were juveniles retained in the juvenile justice system.”
The various studies form a key part of rollback advocates’ argument that emphasizing adult-court prosecution is counterproductive.
Skeptical prosecutors have faulted the studies, or at least questioned the relevance of a New York-New Jersey study to, say, Washington, D.C. “Are you going to use these statistics as a guide for your jurisdiction?” asks Patricia A. Riley, special counsel to the U.S. Attorney’s Office in Washington, which is fighting a rollback proposal.
And she questions the validity of studies conducted within one state, because juveniles who are transferred are — by definition — more serious offenders, hence more likely to recidivate.
Researchers did try to adjust for that factor. But Butts of the University of Chicago, who specializes in juvenile crime statistics, acknowledges that it’s impossible to completely control for differences between juvenile defendants. (continued below)
But he adds that on further reflection, he thinks the realities of juvenile justice can produce counterintuitive results. Property crime, for instance, can be dealt with more leniently by adult court judges and juries, which are used to older and tougher defendants who’ve done worse. “A jury doesn’t want to send a 14-year-old to prison,” he says. “But in the juvenile system a 14-year-old defendant can look like a serious case. There are a lot of things about this business that don’t hold up when you start looking at them.”