Abstract and Keywords
This article examines juvenile justice policy and practice with a special focus on changes over the past quarter-century that have both challenged and reasserted juvenile courts' founding principles that children do indeed differ from adults. Section I provides an overview of the early juvenile court—its philosophical underpinnings and historic mission. Section II examines the “due process revolution” of the 1960s and assesses its intended and unintended consequences. Section III focuses on punitive shifts in juvenile justice policies during the 1980s and 1990s. It identifies the structural and political sources of “get tough” policies, examines the reformulation of adolescents' culpability, and explores their impact on juvenile justice administration. Section IV examines the contemporary juvenile court and recent responses to juvenile courts' historical deficiencies and the punitive overreaction of the 1990s. It assays how new research on adolescent competence and culpability has implicated critical issues in juvenile justice administration and influenced youth crime policy.
For more than a century, two competing cultural conceptions of youth have animated juvenile and criminal justice policies. On the one hand, policymakers may view children as immature, innocent, vulnerable, and dependent. On the other hand, they may characterize youths as mature, responsible, and almost adultlike. These competing perceptions of children affect judgments about their culpability—e.g., degree of criminal responsibility and appropriate treatment or punishment—and questions about their competence—youths’ ability to understand and participate in the legal process. Questions about culpability focus on youths’ judgment, risk perceptions, and self-control, which influence policies about appropriate intervention, e.g., treatment or punishment. Questions about competence focus on youths’ decision-making capacities and how developmental limitations affect their ability to exercise rights. These competing views of youths’ competence and culpability have influenced juvenile courts’ procedure and substance from their inception.
At the beginning of the twentieth century, Progressive Era reformers emphasized youths’ immaturity and vulnerability, and created a separate justice system to shield children from the stigmatizing punishments of the criminal courts and the corrupting influence of adult jails and prisons. They characterized children as irresponsible and incompetent, and replaced the criminal-punitive model of criminal justice with a civil-therapeutic one for young people. According to the Progressives’ vision, the juvenile court would identify the sources of youths’ problem behaviors and act in loco parentis to provide care and supervision to promote their development into responsible and law-abiding adults (Zimring 2000a).
By the end of the twentieth century, lawmakers had adopted harsh, get-tough policies that equated adolescents’ culpability with that of adults. In the late 1980s (p. 628) and early 1990s, almost every state revised its laws to prosecute more and younger juveniles in criminal court, and to punish delinquents more severely in juvenile court (Torbet et al. 1996). These changes reflect a fundamental cultural and legal reconceptualization of youths from innocent and dependent children to responsible and autonomous adultlike offenders. Politicians’ sound bites—“old enough to do the crime, old enough to do the time”—exemplify the reformulation of adolescents, hold them criminally responsible for their actions, and reject youthfulness as a mitigating factor in sentencing (Feld 2008).
Over the past century, several forces have converged at different times to produce these wide oscillations in the social construction of adolescence and juvenile and criminal justice policy—e.g., from rehabilitative treatment to harsh punishment; from a focus on the offender to an emphasis on the offense; from broad policies of inclusiveness to equally broad “front end” diversion policies and overreaching, exclusionary “back end” transfer policies (Bernard 1992; Feld 2003a). Moreover, juvenile justice practices “in action” differ markedly from the law “on the books,” and the historical disjunction between rhetoric and reality has provided impetus for significant system reforms (Feld 2003b).
The idea of childhood is socially constructed, and throughout the twentieth century the juvenile court has been one arena in which public officials have contested its meaning. The court’s jurisdictional boundaries, transfer methods, and delinquency sanctions have evolved with and changed as a result of broader social and political forces that have affected both youth and crime policy. In response to a media-generated panic about increasing youth violence, politicians in the 1980s and 1990s characterized youths as responsible and adultlike, and consigned them to criminal courts, a construction and response quite at odds with the Progressives’ view of children as innocent and vulnerable. Confronted with harsh policies that equated youths and adults, the John D. and Catherine T. MacArthur Foundation sponsored an ambitious research program to identify the sources and nature of differences in competence and culpability between adolescents and adults (Scott and Steinberg 2008). The research identifies substantial differences between youths’ and adults’ thinking, behavior, and self-control. Although adolescents develop adultlike cognitive capacities by their mid-teens, their judgment and impulse control does not approximate that of adults for nearly another decade. These differences have direct relevance for considerations of competence and culpability.
This chapter examines juvenile justice policy and practice with a special focus on changes over the past quarter-century that have both challenged and reasserted juvenile courts’ founding principles that children do indeed differ from adults. Section I provides an overview of the early juvenile court—its philosophical underpinnings and historic mission. Section II examines the “due process revolution” of the 1960s and assesses its intended and unintended consequences. Section III focuses on punitive shifts in juvenile justice policies during the 1980s and 1990s. It identifies the structural and political sources of “get tough” policies, examines the reformulation of adolescents’ culpability, and explores their impact on juvenile justice administration. (p. 629) Section IV examines the contemporary juvenile court and recent responses to juvenile courts’ historical deficiencies and the punitive overreaction of the 1990s. It assays how new research on adolescent competence and culpability has implicated critical issues in juvenile justice administration and influenced youth crime policy.
The main points and conclusions of this chapter are:
• For the past century, policymakers have chosen from two competing images of youth—immature and vulnerable vs. mature and responsible—to rationalize juvenile justice policies.
• In the 1980s and 1990s, politicians equated adolescents’ and adults’ competence and culpability and advocated punitive get-tough laws to punish and deter young offenders.
• These punitive policies led to the transfer of more and younger juveniles to the criminal justice system for prosecution and confinement as adults and to tougher sentences for delinquents. These policies repudiated the founding principles of the juvenile court that viewed children as categorically different from adults and placed them in a separate judicial system.
• The MacArthur Foundation’s research on adolescents’ competence and culpability demonstrates clear differences between youths and adults in thinking, behavior, and self-control. Recent neuroscience research provides a biological explanation for social scientists’ observations about how children differ from adults. Because of these differences, many get-tough policies have produced irrational, counterproductive results.
• The renewed appreciation of adolescents’ developmental differences and diminished criminal responsibility encouraged the Supreme Court in Roper v. Simmons (2005) to abolish the death penalty for offenders younger than eighteen years of age and in Graham v. Florida (2010) to prohibit imposition of life without parole sentences on non-homicide juvenile offenders.
• Youths’ impaired capacity to exercise rights, to participate in the juvenile or criminal process, and to make legal decisions requires a reappraisal of procedural safeguards for youths in both systems.
I. The Progressive Juvenile Court: 1899–1960s
The social history of the Progressive Era and the creation of a separate juvenile justice system is an oft-told tale (e.g., Rothman 1980; Feld, 1999; Tanenhaus 2004; Platt 2009). Social changes associated with economic modernization, immigration, and urbanization modified the roles of women and children. The idea of childhood is (p. 630) socially constructed, and during this period the upper and middle classes promoted an image of children as vulnerable, fragile, and dependent innocents (Ryerson 1978; Platt 2009). Progressive reformers embraced the new construction of childhood and enacted a number of child-centered reforms—juvenile court, child labor laws, social welfare laws, and compulsory school attendance laws—that both reflected and advanced the changing imagery of childhood (Feld 1999).
Changes in ideological assumptions about the sources of crime and deviance influenced many Progressive criminal justice reforms. Positivism—the effort to identify antecedent factors that cause crime and delinquency—challenged the classic formulation of crime as the product of free-will choices (Rothman 1980). Positive criminology attributed criminal behavior to external forces and adopted informal, discretionary policies to rehabilitate offenders—probation, parole, indeterminate sentences, and the juvenile court (Allen 1964).
The juvenile court melded the new ideology of childhood with the new conception of social control, introduced a judicial-welfare alternative to criminal courts, removed children from the adult criminal justice system, and provided individualized treatment in a separate system. From juvenile courts’ inception in 1899 and for the next seventy years, the court was firmly rooted in the doctrine of parens patriae—the state as parent and arbiter of child-rearing. Progressive reformers conceived of children as immature and irresponsible, and saw the juvenile court as a non-punitive child welfare system. To distinguish it from the criminal court, they closed proceedings to public scrutiny and adopted a euphemistic vocabulary. Juvenile court hearings concentrated on a child’s background and welfare, and judges enjoyed wide discretion to administer their courts and supervise children (Allen 1964; Ryerson 1978; Tanenhaus 2004).
The juvenile court’s rehabilitative mission required a specialized judge trained in social work and child development whose empathy and insight would enable him to make dispositions in the “best interests” of the child (Mack 1909). Proof that the child committed an offense—today viewed as a logical and necessary prerequisite to an inquiry into a child’s needs and sentence—was a secondary consideration, as court personnel viewed an offense primarily as a symptom of a child’s “real needs.” Reformers exhibited little concern about protecting children from erroneous adjudications of delinquency because they believed the court delivered benign treatment from which children would benefit. Progressives thus defined the courts’ jurisdiction expansively to include youths accused of crimes, noncriminal “status offenders” who were “at risk” to become delinquents, as well as abused and neglected children (Platt 2009).
Juvenile courts imposed indeterminate and nonproportional sentences, which they characterized as treatment and supervision rather than punishment and control. Dispositions focused on youths’ future welfare rather than their past offenses and could continue for the duration of minority, e.g., until age twenty-one. The courts’ founders opposed procedural safeguards, such as representation by defense (p. 631) counsel and the privilege against self incrimination, because they feared they would impede open communication between judge and child and interfere with the court’s child welfare mission. They employed informal procedures, excluded lawyers and juries, and conducted confidential hearings (Feld 1999).
At its inception, the juvenile court was a fragile institution whose continued existence depended on garnering public and political support (Tanenhaus 2004). The criminal behavior of some young offenders—especially violent and chronic offenders—threatened that support (Tanenhaus 2004). While commission of a serious crime neither transformed a young person into a fully responsible adult nor rendered him a poor candidate for treatment, the public tended to view young violent offenders as sophisticated and adultlike, rather than as immature children, and pressed for harsh punishments (Tanenhaus 2000). Persistent recidivists posed an equally great challenge to the courts’ legitimacy. Their failure to respond to prior intervention suggested that young people might be less amenable to rehabilitation than court advocates assumed. From their creation, juvenile courts transferred some serious and persistent young offenders to criminal court (Rothman 1980; Tanenhaus 2000). Although waiver of jurisdiction conflicted with the juvenile court’s underlying principles of youths’ diminished criminal responsibility and limited adjudicative competence, it proved politically expedient. By relinquishing authority over a few serious offenders, judges could placate public fear and political clamor and thus preserve juvenile courts’ diversionary and rehabilitative role for the vast majority of young offenders.
From the juvenile court’s inception, Progressive reformers intended it to discriminate in its intervention. They designed it to control poor and immigrant children, to assimilate and “Americanize” them, and to distinguish between “our children” and “other people’s children” (Rothman 1980). Today, juvenile courts continue to process and confine a disproportionate number of racial and ethnic minorities, and these disparities remain one of the fundamental criticisms of contemporary juvenile justice (Feld 1999; McCord, Spatz-Widom, and Crowell 2001; Hawkins and Kempf-Leonard 2005). Similarly, reformers exhibited special concern about female offenders’ “sexual precocity,” and juvenile courts’ status jurisdiction enabled them to respond to noncriminal behavior such as sexual activity, truancy, and immorality (Schlossman 1977; Ryerson 1978; Schlossman and Wallach 1978; Platt 2009). Gendered disparities in juvenile justice administration persist today (Feld 2009).
The Progressives situated the juvenile court on several cultural, legal, and criminological fault lines. They created binary distinctions between the juvenile and criminal justice systems: either child or adult; either immature and deserving of assistance or blameworthy and deserving of punishment; either devoid of rules and informal or formal and adversarial. Beginning in the 1960s, a rise in serious youth crime and Supreme Court decisions that addressed the reality of juvenile justice and corrections fostered a shift from the former to the latter of each binary pair.
(p. 632) II. The 1960s and the “Due Process Revolution”
In the decades prior to and after World War II, black migration from the rural South to the urban North increased minority concentrations in urban ghettos, made race a national rather than a regional issue, and provided political and legal impetus for the civil rights movement and constitutional reforms (Feld 1999; 2003a). Youth crime increased dramatically in the 1960s as the children of the baby boom began to reach adolescence, and as the Great Migration substantially increased urbanization of blacks and led to higher crime rates in minority areas (Zimring and Hawkins 1997). These broader structural and demographic changes impelled the Warren Court’s civil rights decisions, criminal procedure rulings, and its “constitutional domestication” of the juvenile court during the 1960s. The Court’s criminal procedure and juvenile justice decisions attempted to protect minority citizens and to limit the authority of the states. The Court adopted procedural safeguards and created per se rules to limit state power, constrain police discretion, and protect peoples’ freedom. Unfortunately, the Court’s criminal procedure and juvenile court decisions—because they coincided with rising crime rates, urban racial disorders, and concerns about racial disparities in justice administration—fueled conservative calls for “law and order” (Feld 1999, 2003a).
Juvenile court’s idealistic vision of individualized treatments often fell far short of realization, but for nearly seventy years the public and policymakers ignored its institutional failures. The absence of procedural safeguards against wrongful convictions and judges’ broad authority over delinquent and predelinquent youth—viewed as essential to the child-saving mission—fostered judicial arbitrariness, discriminatory decisions, and abuses of power. Almost all youth appeared in juvenile court without lawyers (Feld 1993). Probation caseloads were often extraordinarily high, and probation officers frequently were political appointees who lacked appropriate qualifications or training for their positions (Ryerson 1978). Juvenile institutions suffered from overcrowding, unsafe and unsanitary conditions, and poorly trained staff and high turnover (President’s Commission on Law Enforcement and the Administration of Justice 1967). In many institutions, a rule of silence prevailed, recalcitrant inmates spent lengthy periods in isolation rooms, and staff-inmate and inmate-inmate violence was endemic (Feld 1976). In the 1960s, a series of reports—the most influential of which was the President’s Crime Commission Task Force Report on Juvenile Delinquency and Youth Crime (1967)—revealed the deficiencies of juvenile courts and correctional institutions and the plight of juvenile offenders.
The Supreme Court in In re Gault, 387 U.S. 1 (1967), began to transform the juvenile court into a very different institution than the one contemplated by the (p. 633) Progressives. Gault highlighted the disjunction between the rhetoric of juvenile rehabilitation—long used to justify differences between the procedural safeguards afforded criminal defendants and those available to delinquents—and the reality of juvenile correctional practice. In Gault, the Supreme Court engrafted some formal procedures at trial onto the juvenile court’s individualized treatment approach with the observation that “Under our Constitution, the condition of being a boy does not justify a kangaroo court” (1967, 27–28). Despite juvenile courts’ therapeutic rhetoric, Gault concluded that the reality of punitive confinement in juvenile institutions required fundamentally fair procedural safeguards: advance notice of charges, a hearing, assistance of counsel, an opportunity to confront and cross-examine witnesses, and the privilege against self-incrimination (Feld 1984). Gault asserted that adversarial procedural safeguards were essential to determine the factual accuracy of delinquency allegations and to limit the power of the state and insisted that their introduction would not impair juvenile courts’ rehabilitative mission.
Gault endorsed juvenile courts’ therapeutic goals, reaffirmed that juveniles differed from adults, and agreed that they should receive treatment. However, by mandating procedural safeguards, the Court envisioned youths as individuals competent to exercise legal rights and to participate in the adversarial system. Progressives eschewed procedural safeguards in juvenile courts because they viewed young people as immature and irresponsible, and because procedures would encumber rather than contribute to child welfare. Although Gault rejected those assumptions, whether juveniles actually are competent to exercise Miranda and other rights became an increasingly critical question as states adopted more punitive policies (Feld 2003b).
Several subsequent Supreme Court decisions further criminalized juvenile delinquency proceedings. In In re Winship, 397 U.S. 358 (1970), the Court required states to prove delinquents’ guilt by the criminal law’s standard of proof—beyond a reasonable doubt. In Breed v. Jones, 421 U.S. 519 (1975), the court applied the constitutional ban on double jeopardy based on the functional equivalence of criminal trials and delinquency proceedings. However, in McKeiver v. Pennsylvania, 403 U.S. 528 (1971), the Court refused to grant delinquents the constitutional right to a jury trial available to adult criminal defendants. McKeiver concluded that affording delinquents a jury trial would adversely affect the informality, flexibility, and confidentiality of juvenile court proceedings and could provide impetus to abandon the juvenile court experiment (Feld 2003b).
Despite McKeiver’s efforts to reaffirm foundational principles of treatment and rehabilitation, in the aftermath of the Court’s due process decisions, judicial, legislative, and administrative changes have fostered a procedural and substantive convergence between juvenile and criminal courts. Gault and Winship unintentionally transformed the juvenile court from its original conception as a social welfare agency into a scaled-down version of the criminal court (Feld 1984; 1988a). By emphasizing procedural regularity to determine delinquency, the Court shifted (p. 634) juvenile courts’ initial focus from assessing a youth’s “real needs” to proving she committed a crime. Formalizing the connection between law violations and sanctions made explicit a relationship previously implicit, unacknowledged, and deliberately obscured.
Gault and Winship’s insistence on procedural safeguards in juvenile courts may have legitimated more punitive dispositions for young offenders. For example, Gault’s newfound right to counsel for delinquents made it imperative that prosecutors enter juvenile courts for the first time. Prosecutors established juvenile divisions and staffed them with traditionally trained attorneys who infused the juvenile court with a criminal law orientation. Warm, informal talks between judges, children, and parents in juvenile courts all but disappeared as court professionals talked over and about the child whom they relegated to a passive role. Moreover, providing a modicum of procedural justice legitimated greater punitiveness because once states granted even a semblance of procedural justice, they more readily departed from a purely rehabilitative model of the juvenile court. It is a historical irony that concern about racial inequality provided the initial impetus for the Supreme Court’s focus on juveniles’ procedural rights, because the existence of those procedures rationalized increasingly punitive penalties that fall most heavily on minority juvenile offenders.
By the early 1970s, both liberal and conservative critics of rehabilitation and indeterminate sentencing began to swing the penal policy pendulum toward retribution and determinate sentencing. Beginning in the mid-1960s, urban race riots, escalating crime rates, dissatisfaction with the treatment model in penology, and the emerging politics of crime prompted calls for a return to classical principles of criminal law (Beckett and Sasson 2000; Garland 2001; Feld 2003a). The influential publication by the American Friends Service Committee (1971), Struggle for Justice, exhorted courts and legislatures to rein in judicial discretion and return to “just deserts” as a remedy for the disparities associated with individualized treatment. Utilitarian justifications for treatment fared poorly. Evaluation of the effectiveness of treatment raised substantial doubts about clinicians’ abilities to coerce behavioral change and highlighted the subjectivity inherent in therapeutic justice. In the 1970s, researchers published a series of negative appraisals of correctional treatment programs (e.g., Lipton, Martinson, and Wilks 1975; Wright and Dixon 1977; Sechrest, White, and Brown 1979). Martinson’s (1974) celebrated conclusion that “nothing works” precipitated a sharp decline in support for juvenile courts’ therapeutic rationale (Zimring 2000a). Although other research later challenged Martinson’s negative assessment—pointing to methodological flaws in the research, weak evaluation designs, and poor program implementation, rather than the absence of viable treatment methods (e.g., Palmer 1991; Lipsey 1992)—those critiques received little attention from policymakers.
(p. 635) III. 1980s–1990s: The “Get Tough” Era
Macro-structural, economic, and racial demographic changes that occurred in American cities during the 1970s and 1980s, and the escalation in black youth homicide rates at the end of the 1980s provided the backdrop for states’ adoption of get-tough juvenile justice policies in the early 1990s (Feld 1999). The Great Migration of blacks from the rural South to the urban North during the period between World Wars I and II concentrated large numbers of African Americans in inner-city ghettoes (Massey and Denton 1993). After World War II, private and governmental highway, housing, and mortgage policies encouraged suburban expansion and contributed to the growth of middle-class, predominantly white suburbs around increasingly poor and minority urban cores (Feld 1999; Massey and Denton 1993). Beginning in the 1970s, the transition from an industrial and manufacturing to an information and service economy reduced job prospects for unskilled urban dwellers. By the end of the 1980s, an impoverished black underclass was trapped in the inner cities (Wilson 1987). The introduction of crack cocaine combined with the proliferation of guns sparked turf wars in urban neighborhoods over control of lucrative drug markets, and rates of black youth homicide sharply escalated (Blumstein and Cork 1996; Zimring 1998; Cork 1999; Feld 1999).
The upsurge in juvenile gun violence that began in the mid-1980s and peaked in 1994 provided the political impetus to transform juvenile justice policies. The media responded to the urban, predominately black youth gun violence with heavy and sensationalized coverage (Feld 2003a). Media portrayals of young offenders shifted dramatically from the traditionally benign images of immature, misguided youth to menacing portraits of cruel and remorseless adolescent “super-predators” (DiIulio 1995). Political scientist John DeIulio (1995, 23) famously claimed that “Americans are sitting atop a demographic crime bomb,” and others warned of a coming “blood bath” of youth violence (Fox 1996).
A moral panic ensued in which politicians exploited public fears of crime for electoral advantage (Feld 1999, 2003a). Conservative politicians and the mass media pushed crime to the top of the political agenda and focused on violence and gun crimes to promote broader get-tough policies. Politicians, fearful of being labeled “soft on crime,” tried to outdo their opponents in the competition to crack down on youth crime. These political responses sharply challenged the underlying assumptions that had animated the earlier juvenile court movement. The public and politicians no longer viewed young offenders as innocent and dependent children, but rather as responsible and autonomous adultlike offenders (Feld 1999; Garland 2001). Characterizing juvenile offenders as adultlike, incipient career criminals gave traction to sound-bite crime policies—“adult crime, adult time.” Legislators touted the utility of punishment both as a (p. 636) deterrent and as a means to protect public safety, applied harsh adult sanctions to youths who were by no means “worst case” offenders, and enacted unprecedented punitive reforms.
Beginning in the 1980s, juvenile justice policy dramatically shifted away from the parens patriae mission to nurture miscreant youths to an unabashed emphasis on punishment (Feld 1988a; Torbet et al. 1996). Legislatures in nearly every state amended their juvenile code purpose clauses to endorse “punishment,” “holding youth accountable,” and “protecting the public safety” as new juvenile justice goals (Feld 1988a; Torbet et al. 1996). Legislatures in nearly half the states adopted offense-based sentencing provisions to restrict juvenile court judges’ sentencing discretion (Feld 1998). Some states adopted sentencing guidelines to impose presumptive, determinate, and proportional sentences based on age, offense seriousness, and prior record (Feld 1998). Others adopted mandatory minimum sentencing provisions that prescribed minimum periods of confinement or levels of secure placement keyed to the seriousness of the offense. These measures use principles of proportionality to rationalize sentences, to increase the penal bite of juvenile sanctions, and to demonstrate symbolically legislators’ toughness.
States also took steps to facilitate the transfer of more and younger juvenile offenders to criminal court for prosecution and punishment as adults (Torbet et al. 1996; Feld and Bishop 2011). Historically, juvenile court judges waived youths to criminal court only if they concluded after investigating the child’s background—e.g., his clinical needs and assessments, family circumstances, offense and prior record—that he was too dangerous to retain in the juvenile system or was not amenable to treatment. Because politicians perceived juvenile court judges as reluctant to waive serious offenders, they enacted alternative procedures to bypass juvenile courts or to sharply restrict judges’ waiver discretion (Feld 2000a).
In fifteen states, lawmakers shifted to prosecutors authority to choose the forum—juvenile or criminal court—in which a case would be tried and allowed them to direct file—transfer a case—without any hearing or judicial review (Snyder and Sickmund 2006). Most states statutorily excluded some serious or violent crimes from juvenile court jurisdiction, often without regard to the offender’s age. In some states, children as young as ten may be tried as adults. Others limited judges’ discretion by making judicial waiver mandatory or presumptive if prosecutors charged youths with serious crimes. Many states adopted “once an adult, always an adult” provisions that amplified the impact of these other provisions. Some states lowered their juvenile courts’ maximum age of jurisdiction and converted all youths above the new, lower-age threshold into criminals (Feld 2000a). Analysts estimate that annually states try in criminal courts about 250,000 youths who committed their crimes when they were under eighteen, many of whom were neither serious nor chronic offenders (Snyder and Sickmund 2006).
For decades, studies have consistently reported racial disparities in juvenile court sentencing and waiver decisions, which have been exacerbated by the recent (p. 637) get-tough reforms (Bortner, Zatz, and Hawkins 2000; Bishop 2005; Human Rights Watch 2005; Poe-Yamagata and Jones 2007). As a result of successive screenings, differential processing, and cumulative disadvantage, minority youths comprise the majority of juveniles transferred to criminal court and three-quarters of all youths under age eighteen who enter prison (Juskiewicz 2000; Poe-Yamagata and Jones 2007).
Criminal court judges apparently do not mitigate the sentences imposed on youths convicted in criminal court on account of their youthfulness and immaturity. Indeed, judges imposed harsher sentences on waived adolescents than they imposed on comparable young adult defendants (Kurlychek and Johnson 2004, 2010; Feld and Bishop 2011). Except as noted below, criminal sentencing laws did not regard even the most extreme penalties to be inconsistent with youth. Until the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005), some states imposed the death penalty on offenders as young as sixteen. And today, in contravention of the U.N. Convention on the Rights of the Child,1 several thousand individuals serve sentences of life without possibility of parole (LWOP) for offenses they committed as juveniles (Human Rights Watch 2005).2 Only three other countries (none in Europe) permit juvenile LWOP sentences, but they have imposed them only in about a dozen cases worldwide (Human Rights Watch 2005, 5).
In sum, at the close of the twentieth century, the United States had embraced policies that expanded the reach and bite of transfer laws, and increased the punitive powers of juvenile courts. These shifts challenged, if not repudiated, the basic ideas of youthful immaturity and malleability that provided the critical jurisprudential underpinnings of the juvenile court.
IV. 2000–2010: Reassessing Adolescents’ Competence and Culpability
Nearly a century after its creation, widespread public, policymaker, and political dissatisfaction with the juvenile justice system produced contradictory impulses. Some politicians advocated get-tough policies and criticized juvenile courts for failing to adopt harsher, retributive strategies to hold young offenders accountable and to punish them just like adults. Supporters of juvenile courts criticized them for failing to meet the needs of their clientele, many of whom suffered from psychological problems, educational deficits, poverty, and abuse (Scott and Steinberg 2008). Others condemned the racial disparities in juvenile justice administration that produced disproportionate minority confinement (McCord, Spatz-Widom, and Crowell 2001; Hawkins and Kempf-Leonard 2005). The public perceived the juvenile court as incapable of rehabilitating offenders, reducing youth crime, or protecting the public safety (Feld 2003a).
(p. 638) Beginning in the mid-1990s, the John D. and Catherine T. MacArthur Foundation funded a Network on Adolescent Development and Juvenile Justice (ADJJ), sponsored extensive developmental psychological research on youths’ thinking and behavior, and provided an evidence-based rationale for juvenile justice policy (Scott and Steinberg 2008; http://www.adjj.org). Created in response to the get-tough policies of the 1990s, the ADJJ Network conducted interdisciplinary research to examine developmental differences between how young people and adults think and act, and to consider the implications of adolescents’ immature judgment for juvenile and criminal justice policy. The MacArthur research program focused on three broad themes: (1) adolescents’ legal competence; (2) youths’ criminal culpability; and (3) their treatment responsiveness and potential for change. Research on competence focused on how adolescents think, their decision-making capacities, and how their limitations affect their ability to participate in the justice systems. Research on culpability focused on adolescents’ maturity of judgment and criminal responsibility, and provided a rationale for categorical mitigation of sanctions for adolescents. The ADJJ Network has published a series of edited books and monographs, and its research is encouraging a re-examination and amelioration of some of the harsher get-tough policies enacted previously (e.g., Grisso and Schwartz 2000; Fagan and Zimring 2000; Hawkins and Kempf-Leonard 2005; Scott and Steinberg 2008). The MacArthur Foundation is collaborating with policymakers and stakeholders in several states to implement developmentally appropriate juvenile justice policies that reflect current knowledge about adolescents’ culpability and competence.
A. Adolescents’ Diminished Culpability
In 2005 the Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005) overruled Stanford v. Kentucky, 492 U.S. 361 (1989), and categorically barred states from executing youths for crimes committed prior to eighteen years of age. Changes in state laws and jury verdicts provided evidence of an emerging national consensus against executing juveniles. The Roper majority also conducted a proportionality analysis of adolescents’ culpability and offered three reasons why states could not punish youths whom they found to be criminally responsible as severely as adults. First, juveniles’ immature judgment and lesser self-control caused them to act impulsively without full appreciation of consequences and reduced their culpability (Roper 2005). Second, juveniles’ greater susceptibility than adults to negative peer influences diminished their criminal responsibility (Roper 2005). Third, juveniles’ personalities are more transitory and less well-formed, and their crimes provide less reliable evidence of a “depraved character” than do those of adults (Roper 2005). These developmental characteristics correspond with traditional justifications to mitigate punishment such as diminished capacity, duress and provocation, and lack of bad character (Scott and Steinberg 2003; 2008). Roper recognized both adolescents’ diminished responsibility for past offenses and their unformed and perhaps (p. 639) redeemable character in the future. Juveniles’ immature judgment, susceptibility to negative influence, and transitory character also negated retributive and deterrent justifications for the death penalty (Roper 2005).
The most substantial differences between the majority and dissenting justices in Roper concerned whether to bar the death penalty categorically or to allow juries to assess juveniles’ culpability individually (Feld 2008). Although two dissenting opinions urged individualized evaluations, Justice Kennedy opted for a categorical ban.
Justice Kennedy noted that psychiatrists refrain from diagnosing patients younger than eighteen years of age with “antisocial personality disorder” because the psychiatrists lacked clinical tools with which to differentiate between immature juveniles and the “rare juvenile offender whose crime reflects irreparable corruption” (Roper 2005, 573). Because jurors might ignore the mitigating role of youthfulness when confronted with a brutal murder, Roper used age as a conclusive proxy for reduced culpability and disallowed them to make judgments that trained professionals eschewed.
The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. (Roper 2005, 572–73)
Roper offered three reasons—immature judgment, susceptibility to negative peer influences, and transitional identities—to support its conclusion that juveniles are categorically less criminally responsible than adults. Although differences between adolescents and adults seem intuitively obvious—“as any parent knows”—Roper did not cite scientific evidence to bolster its decision (Roper 2005; Denno 2006). However, developmental psychological and neuroscience research corroborates Roper’s observations about adolescents’ immature decision making, limited self-control, and reduced culpability and its implication for sentencing youths.
Sentencing theory apportions deserved punishment to the seriousness of the offense (von Hirsch 1976, 1985; Frase 2005). Two elements—harm and culpability—define a crime’s seriousness and the punishment its perpetrator deserves. An offender’s age does not affect the harm caused—a fifteen-year-old can inflict the same injuries as an adult (van den Haag 1975). However, an offender’s ability to appreciate the wrongfulness of her actions and to control her behavior increases with age and affects evaluations of culpability (Zimring 2000b; Brink 2004). Although states may hold youths accountable for their harms, Roper limited somewhat the severity of the sentence they could impose because of diminished responsibility. Even after youths can distinguish right from wrong, their decisions are not as blameworthy as adults’ and warrant less severe punishment (Feld 1997; Scott and Grisso 1997; Zimring 2000b).
(p. 640) Developmental psychologists study how children’s thinking and behavior change as they mature. By mid-adolescence, most youths can distinguish right from wrong and can reason similarly to adults (Scott 1992; Steinberg and Cauffman 1999; Scott and Steinberg 2008). For example, youths and adults use comparable reasoning processes to make informed consent medical decisions (Morse 1997). But the ability to make good choices when provided with complete information under laboratory conditions differs from the ability to make good decisions under stressful conditions with incomplete information (Cauffman and Steinberg 1995; Steinberg and Cauffman 1996; Spear 2000). Emotions play a significant role in decision making, and researchers distinguish between conditions of “cold cognition” and “hot cognition” (Dahl 2004; Aronson 2007). Mood volatility, an appetite for excitement, and stress adversely affect the quality of adolescents’ decisions (Scott 1992; Steinberg and Cauffman 1996).
Research sponsored by ADJJ Network reports a disjunction between youths’ cognitive abilities and their maturity of judgment (www.adjj.org; Feld 2008; Scott and Steinberg 2008). Even though adolescents by about age sixteen exhibit cognitive abilities comparable with adults, they do not develop psycho-social maturity, capacity to exercise self-control, and competence to make adult-quality decisions until their early-twenties (Scott, Reppucci, and Woolard 1995; Scott and Steinberg 2003; Feld 2008). The “Immaturity Gap” represents the cleavage between adolescents’ intellectual maturity—which reaches near-adult levels by age sixteen—and psycho-social maturity of judgment which may not emerge fully for another decade (Feld 2008; Scott and Steinberg 2008).
Roper highlighted adolescents’ immature judgment rather than their cognitive ability to distinguish right from wrong. Youths’ immature judgment in several domains—perceptions of risk, appreciation of future consequences, self-management, and ability to make autonomous choices—distinguishes them from adults (Morse 1997; Scott and Steinberg 2003). Youths’ bad choices are categorically less blameworthy than those of adults because the differences in knowledge and experience, short-term versus long-term time perspectives, attitude toward risk, and impulsivity are normal features of adolescent development (Scott, Reppucci, and Woolard 1995; Morse 1997; Scott and Grisso 1997; Scott and Steinberg 2003).
To exercise good judgment and self-control, a person must be able to think ahead, delay gratification, and restrain impulses. Adolescents act more impulsively, fail to consider long-term consequences, and engage in riskier behavior than do adults. Their propensity to take risks is reflected in higher incidences of accidents, suicides, unsafe-sexual practices, and criminal activity (Scott 1992; Spear 2000). To calculate risks, a person has to identify potential positive and negative outcomes, estimate the likelihood of occurrence, and then apply value preferences to optimize outcomes (Furby and Beyth-Marom 1992). To a greater extent than adults, adolescents underestimate the amount and likelihood of risks, employ a shorter time frame in their calculus, and focus on gains rather than losses (Furby and (p. 641) Beyth-Marom 1992; Grisso 2000; Scott 2000). Juveniles fifteen years of age and younger act more impulsively than do older adolescents, but even sixteen- and seventeen-year-old youths fail to exhibit adult levels of self-control (adjj.org). Adolescents possess less information and consider fewer options than adults do when they make decisions because of inexperience (Scott 2000). While youths and adults solve simple problems similarly, the length of time used to solve complex problems increases with age (adjj.org).
Adolescents’ risk perception actually declines during mid-adolescence and then gradually increases into adulthood—sixteen- and seventeen-year-olds perceive fewer risks than do either younger or older research subjects (adjj.org). Mid-teens are the most present-oriented of all age groups, and future orientation gradually increases into the early twenties (adjj.org). Youths weigh costs and benefits differently than do adults and apply different subjective values to outcomes that affect their choices (Scott and Steinberg 2008). A study of peoples’ ability to delay gratification reports that adolescents more often opt for an immediate, but smaller, reward, whereas adults delay a reward unless the immediate value only is slightly discounted (adjj.org).
Youth also view not engaging in risky behaviors differently than do adults (Scott 1992; Scott and Steinberg 2003, 2008). They engage in risky behavior for heightened sensations, excitement, and an adrenaline rush (Scott and Grisso 1997; Spear 2000). Their appetite for risk and novel sensations peaks at ages sixteen and seventeen and then declines. The widest divergence between perception of and preference for risk occurs during mid-adolescence when youths’ rates of criminal activity also increase (adjj.org). Youths’ feelings of invulnerability and immortality heighten these risk proclivities (Furby and Beyth-Marom 1992).
Youths’ immature judgment and impaired self-control are associated with neurobiological differences between adolescent and adult brains. Neuroscience research corroborates developmental psychologists’ observations and provides an additional basis to find youths’ criminal responsibility diminished (Maroney 2009). Differences between adolescents’ and adults’ thinking and behavior reflect basic neurobiological differences in the human brain, which does not fully mature until the early twenties (Spear 2000; Sowell et al 2001, 2002; Dahl 2004; Scott and Steinberg 2008). Adolescents simply do not have the physiological capacity of adults to exercise judgment or control impulses (Dahl 2004; Gruber and Yurgelun Todd 2006). The prefrontal cortex (PFC) of the frontal lobe of the brain operates as the Chief Executive Officer to control advanced cerebral activities (Kandel et al. 2000). Executive functions include reasoning, abstract thinking, planning, anticipating consequences, and impulse control (Aronson 2009). During adolescence and into the early twenties, increased myelination of the PFC improves executive functions and reasoning ability. By contrast, the amygdala—the limbic system at the base of the brain—controls instinctual behavior, such as the “fight or flight” response (Kandel et al 2000). Adolescents rely more heavily on the amygdala and less heavily (p. 642) on the PFC than do adults when they experience stressful situations. Their impulsive behavior reflects a gut reaction rather than sober reflection (Arrendondo 2003). Novel circumstances and aroused emotions especially challenge youths’ ability to exercise self-control and to resist impulsive decisions.
Neuroscience research provides a hard-science explanation for social scientists’ observations about adolescents’ behavior and self-control. Adolescents’ immature brains do not provide a deterministic excuse for criminal behavior (Maroney 2009). Scientists have not established the links between immature brain structure and function and their impact on real-life decisions or behavior under stressful conditions, nor have they developed bases on which to differentiate among offenders founded on brain development (Morse 2006; Aronson 2007; Maroney 2009). Rather, neuroscience research enhances our understanding of how and why juveniles think and behave differently from adults, and furnishes another basis to mitigate their punishment.
Roper’s rationale of adolescents’ diminished responsibility has wider implications for sentencing youth. A juvenile’s criminal responsibility is just as diminished when states impose LWOP or other lengthy sentences as it is when they execute him (Brink 2004; Feld 2008). The Supreme Court’s capital punishment jurisprudence insisted that “death is different” (Eddings 1982; Harmelin 1991; Graham 2010). However, there are no developmental or penological features that distinguish youths’ diminished criminal responsibility for purposes of the death penalty from their reduced culpability when states impose other harsh sentences (Zimring 1998). Forty-two states permit judges to impose an LWOP sentence on any offender—adult or juvenile—convicted of serious offenses—e.g., murder or rape—and twenty-seven states require mandatory sentences for offenders convicted of those crimes.
Mandatory LWOP sentences preclude consideration of youthfulness as a mitigating factor (Human Rights Watch 2005; Nellis and King 2009). Several states abrogated the common-law infancy defense for very young children and removed the only substantive criminal law protections for youth (Feld 2008). Appellate courts regularly uphold LWOP sentences and long terms of imprisonment imposed on youths as young as twelve years of age, and reject juveniles’ pleas to consider youthfulness as a mitigating factor (Human Rights Watch 2005; Feld 2008; Deitch et al 2009). About one of every six juveniles who received an LWOP sentence was fifteen years of age or younger when they committed their crimes (Human Rights Watch 2005). More than half (59 percent) of juveniles who received an LWOP sentence had no prior criminal convictions (Human Rights Watch 2005). More than one quarter (26 percent) of youths received an LWOP sentence for a felony murder to which they were an accessory rather than the principal (Human Rights Watch 2005). In addition to the several thousand youths serving LWOP sentences, criminal court judges have imposed life sentences on an additional 6,807 juveniles (Nellis and King 2009). Although the Court’s death penalty jurisprudence defines youthfulness as a mitigating factor, trial judges perversely treat it as an aggravating factor and sentence juveniles more severely than young adults convicted of similar (p. 643) crimes (Kurlychek and Johnson 2004, 2010; Snyder and Sickmund 2006). Youths convicted of murder are more likely than adult murderers to enter prison with LWOP sentences (Human Rights Watch 2005).
In Graham v. Florida, 130 S.Ct. 2011(2010), the Court applied Roper’s diminished responsibility rationale to youths convicted of non-homicide crimes whom judges sentenced to life without parole. Historically, the Court’s Eighth Amendment proportionality analyses had distinguished between capital sentences and long terms of imprisonment, and deferred to legislative decisions about deserved punishments (Feld 2008). However, Graham concluded that offenders who did not kill were “categorically less deserving of the most serious forms of punishment than are murderers.” Because of juveniles’ diminished responsibility, those who did not kill have “twice-diminished moral culpability. The age of the offender and the nature of the crime” categorically precluded the penultimate penalty for non-homicide crimes as well. Graham emphasized youths’ immature judgment and reduced self-control, susceptibility to negative peer influences, and transitory personality development. Graham asserted that subsequent research in developmental psychology and neuroscience bolstered its Roper conclusion that adolescents’ reduced culpability required somewhat mitigated sentences:
Graham’s Eighth Amendment analyses referred to many factors—penal justifications for sentencing practices, Roper’s intuition about adolescent developmental differences, states’ laws and sentencing practices, and international law—and neuroscience provided one more piece of confirmatory data in the Court’s holding (Maroney 2009).
[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.
Although Graham extended Roper’s rationale of youths’ diminished culpability, it granted the 129 youths convicted of non-homicide crimes and serving LWOP sentences limited relief. The Court only required states to “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” but cautioned that the opportunity for parole review “does not require the state to release that offender during his natural life.” Graham distinguished the lesser seriousness of non-homicide crimes from murder and does not affect the seven thousand youths convicted of murder who serve LWOP or life sentences or others who serve very lengthy sentences (Nellis and King 2009).
B. Adolescents’ Legal Competence
Contemporary delinquency proceedings have become much more procedurally formal than those envisioned a century ago. The increased legal complexity makes greater demands on children’s ability to make legal decisions and to participate in (p. 644) proceedings. However, developmental psychologists questions youths’ competence to understand and to participate or to waive rights. Adolescents’ limited competence stems from many of the same developmental and neurobiological features reviewed above.
Progressive reformers envisioned a procedurally informal juvenile court that acted in the child’s best interests. Gault (1967) granted delinquents a constitutional right to counsel and the Fifth Amendment privilege against self-incrimination, and initiated a procedural convergence between juvenile and criminal courts. Gault and its progeny made delinquency proceedings more formal and complex and require youths to make difficult legal decisions. Adolescents’ adjudicative competency has become more critical as states’ get-tough policies increased the direct and collateral consequences of delinquency adjudications (Feld 2003b).
Developmental psychologists have examined adolescents’ adjudicative competence, their ability to exercise or waive Miranda rights or the right to counsel, and their capacity to participate in legal proceedings. The research questions whether juveniles possess the cognitive ability, psycho-social maturity, and judgment necessary to exercise legal rights. It convincingly indicates that younger and mid-adolescent youths exhibit substantial deficits in understanding and competence compared with adults. Many of the developmental features reviewed previously—impaired judgment, risk-calculus, short-term perspective, and the like—contribute to their reduced competence. The Supreme Court in Graham noted how these characteristics adversely affected juveniles’ ability to exercise procedural rights and impaired their defense representation:
This section reviews the legal contexts within which questions arise about adolescents’ adjudicative competence—competence to stand trial and ability to waive Miranda and the right to counsel. Despite clear developmental differences between youths and adults, the Court and most states do not provide additional procedural safeguards to protect juveniles from their own immaturity and vulnerability. Instead, they use adult standards to gauge juveniles’ competence to stand trial and to waive Miranda rights and counsel. Because of differences in ability and competence, formal equality produces practical inequality for juveniles in the justice system.
[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to work with their lawyers to aid in their defense. Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense. These factors are likely to impair the quality of a juvenile defendant’s representation. (Graham 2010).
(p. 645) 1. Adolescents’ Competence to Stand Trial
As juvenile courts have become more formal and punitive, analysts increasingly question juveniles’ ability to function in complex legal settings in which prosecutors and judges may impose significant consequences. As states transfer more and younger juveniles to criminal courts, judges face even more difficult questions about youths’ competence to stand trial as adults because of developmental immaturity. Competence is the constitutional prerequisite to the exercise of other procedural rights and to assure a fair trial. To be competent to stand trial, a criminal defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and have a] rational as well as factual understanding of the proceedings against him,” and have the capacity “to assist in preparing his defense” (Dusky v. United States, 362 U.S. 402 ; Drope v. Missouri, 420 U.S. 162 ). Judges evaluate a youth’s competence by assessing her ability to “(1) understand the charges and the basic elements of the adversary system (understanding), (2) appreciate one’s situation as a defendant in a criminal prosecution (appreciation), and (3) relate pertinent information to counsel concerning the facts of the case (reasoning)” (Bonnie and Grisso 2000, 76).
Developmental psychologists argue that immaturity per se produces deficits of understanding, impairment of judgment, and inability to assist counsel similar to those produced by severe mental illness or developmental disability (Grisso 1997a, 1997b, 2000; Scott and Grisso 2005). For adolescents, generic developmental features adversely affect their ability to understand proceedings, to receive information, to communicate with and assist counsel, and to make rational decisions, and render them incompetent (Grisso 1997b; Scott and Grisso 2005). About half the states address juveniles’ competency to stand trial in statutes, court rules of procedure or case law, and conclude that delinquents have a fundamental right not to be tried while incompetent (Scott and Grisso 2005).
Even after states recognize juveniles’ right to a competency determination, they differ over the appropriate standard to apply. Some courts apply the adult competency standard in delinquency and criminal prosecutions because both proceedings may result in a child’s loss of liberty. Other jurisdictions opt for a more relaxed competency standard in delinquency than in criminal proceedings, because juvenile hearings are less complex than criminal trials (Scott and Grisso 2005).
2. Juveniles’ Ability to Exercise Legal Rights: Miranda Rights
After Gault applied the privilege against self-incrimination to delinquency proceedings, juveniles also must receive a Miranda, 384 U.S. 436 (1966) warning prior to custodial interrogation. The Court in Haley v. Ohio, 332 U.S. 596 (1948), and Gallegos v. Colorado, 370 U.S. 49 (1962) cautioned judges closely to scrutinize the effects of youthfulness and inexperience on the voluntariness of statements, and it excluded (p. 646) confessions extracted from fourteen- and fifteen-year-old youths. Gault reiterated the Court’s concerns about the impact of youthfulness on the exercise of legal rights. However, in Fare v. Michael C., 442 U.S. 707 (1979), the Court considered a Miranda waiver given by a sixteen-and-a-half-year-old who had several prior arrests. Fare repudiated the Court’s earlier concern about juveniles’ vulnerability to coercion and held that trial judges should use the adult standard—“knowing, intelligent, and voluntary” under the “totality of the circumstances”—to evaluate juveniles’ waivers of rights. Fare rejected the view that developmental differences between juveniles and adults required different procedures and insisted that children, like adults, must assert legal rights clearly and unambiguously (Feld 2000b). The Court in Yarborough v. Alvarado, 541 U.S. 652 (2004) rejected youthfulness and inexperience as special factors when deciding whether juveniles are in custody and entitled to a Miranda warning.
As a result of Fare and Alvarado, federal constitutional law and the vast majority of states3 treat juveniles as the functional equals of adults in the interrogation room. Just as with an adult, trial judges must decide whether a youth made a waiver of her rights “knowingly, intelligently, and voluntarily.” The “totality of the circumstances” includes factors about the offender—e.g., age, education, IQ, and prior contacts with police—and circumstances surrounding the interrogation—e.g., the location, methods, and length of interrogation (Feld 2006a; 2006b). While appellate courts identify many factors for trial judges to consider, they remit the weighing of those factors to their discretion (Grisso 1980; Feld 2006a). In practice, most judges apply the totality standard very conservatively, find valid Miranda waivers whenever police testify that a juvenile said she understood her rights, and often fail to exclude even obviously invalid waivers and confessions (Feld 1984, 2006a). Coercive interrogation techniques, young age and mental deficiencies do not prevent trial judges from finding and appellate courts from upholding youths’ Miranda waivers as voluntary (Feld 1984; 2006a). Trial judges admit confessions made by ten-year-old children and by illiterate or developmentally disabled juveniles whom psychologists characterize as incapable of abstract reasoning (see, e.g., People v. Cheatham, 551 N.W. 2d 355 [Mich. 1996]; Drizin and Leo 2004; Feld 2006a).
Although judges use the adult legal standard to gauge juveniles’ waivers of rights, developmental and social psychologists question whether juveniles have the cognitive capacity or psycho-social maturity to make a valid waiver. The foremost research, by Thomas Grisso, reports that most juveniles simply do not understand a Miranda warning or counsel advisory well enough to waive rights in a knowing and intelligent manner (Grisso 1980; 1981; Feld 2000b). Without adequate understanding, juveniles are at a comparative disadvantage with adults to exercise rights. Juveniles most frequently misunderstood the right to consult with an attorney and to have a lawyer present when police questioned them (Grisso 1980, 1981). Younger juveniles exhibited even poorer understanding of their Miranda rights than did mid-adolescents (Grisso 1981). Even though juveniles sixteen years of age and older (p. 647) exhibited a level of understanding comparable with adults, substantial minorities of both groups failed to grasp at least some components of the standard warning.
Although Miranda focuses primarily on suspects’ understanding of the words of the warning, a valid waiver of rights also requires the ability to appreciate legal consequences and to make rational decisions. Juveniles often fail to appreciate the significance of rights or to grasp the basic idea of a right as something they can exercise without adverse consequences (Grisso 1997a, 1997b; Grisso et al. 2003). They are more likely than adults to conceive of a right as something that authorities permit them to do, but which they may unilaterally retract or withhold (Grisso 2000). Children’s lower social status and societal expectations of their obedience to authority may make them more vulnerable to interrogation techniques than adults. For example, when youth deal with authority figures, they may speak less assertively and use indirect patterns of speech to avoid conflict (Ainsworth 1993). During interrogation, youth respond more passively and acquiesce to police suggestions more easily (Kaban and Tobey 1999). Thus, Fare’s requirement that juveniles invoke Miranda rights with adultlike technical precision conflicts with normal social responses and verbal styles of most delinquents.
Empirical studies of routine interrogations of older juveniles and the characteristics of defendants who gave proven false confessions shed light on police practices and developmental psychologists concerns about adolescents’ vulnerability. Feld (2006a, 2006b) reported that 80 percent of the sixteen- and seventeen-year-old juveniles charged with a felony waived their Miranda rights. These rates are very similar to the high waiver rates reported in studies of adults (Leo 1996; Gudjonsson 2003). Once officers secured a Miranda waiver, they used the same two-pronged strategy they employed with adults to overcome suspects’ resistance and to enable them more readily to admit responsibility.4 Feld’s (2006a, 2006b) research on older juveniles is remarkably congruent with Leo’s (1996, 2008) observations of interrogation of adults. About the same proportion waived their Miranda rights, following which police used the same strategies and tactics to question them. These juveniles responded to those tactics, co-operated or resisted, and provided incriminating evidence at about the same rate as did adults. Police interrogated the vast majority of these juveniles for a brief period of time (Feld 2006b). In short, the law treats juveniles just like adults, and police question them just as they do older suspects.
Drizin and Leo (2004) examined 125 cases of proven false confessions based on DNA-exonerations. Three factors consistently contributed to police-induced false confessions—youthfulness, coercive interrogation techniques, and prolonged questioning. Youths’ diminished competence relative to adults increased their susceptibility to psychological techniques and the concomitant risks of false confessions. Their limited understanding of rights or appreciation of legal consequences increases the likelihood that they will waive Miranda rights (Bonnie and Grisso 2000; Redlich and Goodman 2003; Redlich et al. 2004; Kassin and Gudjonsson 2005). Juveniles’ imperfect ability to think strategically makes them more likely (p. 648) than adults to assume responsibility out of misguided feelings of loyalty to peers (Grisso et al. 2003). They have a greater tendency than adults to comply with authority figures and to acquiesce to police (Gudjonsson 2003; Tanenhaus and Drizin 2003). Interrogation techniques designed for adults—especially coercive or prolonged questioning—may prove especially problematic when deployed against young suspects. Police obtained 35 percent of all of the proven false confessions from youths younger than eighteen years of age and 19 percent from youths aged fifteen or younger, even though younger juveniles comprise a very small proportion of the serious offender population (Drizin and Leo 2004).
3. Waivers of Counsel
Gault (1967) likened the seriousness of a delinquency proceeding to a felony prosecution and granted juveniles a constitutional right to counsel. However, Gault only required a judge to advise a child and parent of a right to counsel and, if indigent, to have counsel appointed. The Court also noted that juveniles could waive counsel as long as they did so knowingly, intelligently, and voluntarily. Most states do not use special measures to protect youths from their own immaturity, such as mandatory appointment of counsel (Feld 1984, 1993). As with Miranda waivers, formal equality produces practical inequality—lawyers represent juveniles at lower rates than they do adult criminal defendants (Feld 1988b, 1991; Harlow 2000; Burrus and Kempf-Leonard 2002).
Waiver of counsel is the most common reason that so many juveniles are unrepresented (Feld 1989; ABA 1995; Cooper, Puritz, and Shang 1998; Berkheiser 2002).5 As with Miranda, judges use the adult standard—knowing, intelligent, and voluntary—to gauge juveniles’ waivers of counsel (Fare v. Michael C. 1979; Johnson v. Zerbst, 304 U.S. 458 ; Berkheiser 2002). They consider the same factors—age, education, IQ, prior contacts with police, or experience with delinquency trials—to decide whether youths understood and voluntarily waived counsel (Feld 1984; 1989; 2006a). Many juveniles waive counsel without consulting with either a parent or an attorney (Berkheiser 2002). Judges are supposed to give a clear advisory of the right to counsel and then determine whether a child possesses sufficient ability to represent herself, whether she understands the charges, proceedings, and potential consequences, and whether she appreciates the disadvantages of waiving counsel (In re Christopher H., 596 S.E.2d 500 [SC App. 2004]). Appellate cases reveal that judges frequently omit any counsel advisory, often neglect to create a record of a waiver colloquy, and readily accept waivers from obviously incompetent children (Berkheiser 2002).
Developmental psychological research on adolescents’ adjudicative competence raises further doubts about juveniles’ ability to exercise legal rights. As noted earlier, a defendant must have the ability to understand legal proceedings; to provide, receive, and understand information from counsel; and to make reasonable (p. 649) choices in order to be competent to stand trial (Dusky v. United States, 362 U.S. 402 ; Bonnie and Grisso 2000; Grisso 2000). Grisso’s research on adolescents’ adjudicative competence, like his earlier research on youths’ competence to exercise Miranda rights, found significant age-related differences in understanding and judgment (Grisso et al. 2003). Most juveniles younger than thirteen or fourteen years of age exhibited the same degree of impairment as severely mentally ill adult defendants and lacked basic ability to understand, assist, or participate in their defense (Bonnie and Grisso 2000; Grisso et al. 2003; Scott and Steinberg 2008). A significant proportion of juveniles younger than sixteen lacked competence to stand trial, to make legal decisions, or to assist counsel, and many older youths exhibited substantial impairments (Grisso et al. 2003). Even adolescents who may be legally competent in terms of formal understanding often make poorer legal decisions than do adults because of their more limited time-perspective, emphasis on short-term versus long-term consequences, and concern about peer approval (Scott and Grisso 1997a, 1997b; Steinberg and Cauffman 1999; Bonnie and Grisso 2000).
The research on juveniles’ adjudicative competence reinforces studies of their ability to waive Miranda rights and counsel. Many juveniles simply do not understand the meaning of a Miranda warning or a counsel advisory well enough to make a valid waiver. Although older juveniles understood Miranda warnings about as well as adults, substantial minorities of both groups failed to grasp at least some elements of the warning (Grisso 1997a, 1997b). Even youths who understand the words of a Miranda warning or advisory of counsel may not appreciate the function or importance of rights as well as adults (Grisso 1980, 1997a, 1997b, 2003; ABA 1995). Research reports significant age-related differences between adolescents’ and young adults’ adjudicative competence, legal understanding, and quality of judgment (Bonnie and Grisso 2000; Grisso et al 2003). Low IQ scores interacted with age, and youths’ with low IQs performed significantly worse than did either low-IQ adults or same-aged youths (Grisso et al 2003; Scott and Grisso 2005). And, low-IQ youths comprise a larger proportion of youths involved with juvenile courts than in the general population.
More than forty years after Gault granted delinquents a constitutional right to counsel, the delivery of quality legal services in juvenile courts remains problematic. Many juveniles, including those charged with serious crimes, waive their right to counsel (Feld 1993; Feld and Schaefer 2010). Since the late 1990s, the American Bar Association and the National Juvenile Defender Center have conducted a series of state-by-state assessments and report that many, if not most, juveniles appear without counsel. They also report that when juveniles are represented, their lawyers often provide substandard representation because of obstacles to effective advocacy such as inadequate support services, heavy caseloads, and a lack of investigators or dispositional advisors (Feld and Schaefer 2010). Moreover, regardless of how inadequately lawyers perform, juvenile courts seem incapable of correcting their own errors. Defense attorneys rarely, if ever, appeal adverse decisions and (p. 650) often lack a record with which to challenge an invalid waiver of counsel (Feld and Schaefer 2010).
The collateral consequences of delinquency convictions amplify the procedural deficiencies of juvenile courts (Feld 2003b). In addition to the direct consequences, states consider prior delinquency convictions to transfer youths to criminal and to enhance their criminal sentences as adults (Feld 2003b). In addition, delinquency convictions may provide the predicate for sex offender registration, while drug convictions may bar youths and their families from public housing.
Recent developmental psychological and neuroscience research has taught us scientifically much more than we previously knew about how children think and act, and how their thought processes differ from adults. And these studies reaffirm Roper’s intuition that juveniles differ from adults. The research findings reinforce the historic recognition that youths’ legal competence and criminal responsibility are less than those of adults and support the rationale for a separate juvenile justice system (Scott and Steinberg 2008). After two decades of punitive, get-tough policies, it is appropriate to re-examine the implications of research on competence and culpability for sentencing youths and protecting their procedural rights.
Roper and Graham’s diminished responsibility rationale provide a broader foundation to formally recognize youthfulness as a categorical mitigating factor in criminal sentencing. Because adolescents lack the judgment, appreciation of consequences, and self-control of adults, they deserve shorter sentences when they cause the same harms. Adolescents’ personalities are in transition, and it is unjust and irrational to continue harshly punishing a fifty- or sixty-year-old person for the crime that he, as an irresponsible child, committed several decades earlier.
Roper and Graham’s categorical treatment of youths’ diminished criminal responsibility provides the rationale for a “youth discount” (Feld 1997, 1999, 2008). Roper and Graham used age as a proxy for reduced culpability because no better, more reliable bases exist on which to individualize sentences. Because all adolescents share general characteristics of immature judgment, impulsiveness, and lack of self-control, all young offenders in criminal courts should receive categorical reductions of adult sentences. A categorical rule of youthful mitigation is preferable to individualized sentencing discretion for two reasons. The first is our inability either to define or identify what constitutes adultlike culpability among offending youths. Despite developmental differences, clinicians lack the tools with which to assess youths’ impulsivity, foresight, or preference for risk in ways that relate to maturity of judgment and criminal responsibility. The second reason to (p. 651) treat youthfulness categorically is the inability of judges or juries to fairly weigh an abstract consideration of youthfulness as a mitigating factor against the aggravating reality of a horrific crime. A substantial youth discount of the sentences imposed on adults provides a sliding scale of severity that corresponds with the increasingly diminished responsibility of younger offenders. A sliding scale of diminished criminal responsibility gives the largest sentence reductions to the youngest, least mature offenders. Recognizing youthfulness as a mitigating factor would preclude imposing LWOP and other lengthy sentences on younger offenders.
The decades since Gault have witnessed a procedural as well as substantive convergence between juvenile and criminal courts. The greater procedural formality and adversarial nature of delinquency proceedings reflects juvenile courts’ shift in emphases from rehabilitating offenders to protecting public safety. Despite these changes, most states do not provide delinquents with procedural safeguards that provide formal or functional protections comparable to those of adult criminal defendants (Feld 2003b). Juveniles waive their Miranda rights and right to counsel at trial under a standard—“knowing, intelligent, and voluntary” under the “totality of circumstances”—that is unlikely to discern whether they actually understand and are competent to exercise the rights they relinquish. The high rates of waiver of counsel constitute an indictment of the entire delinquency process, because assistance of counsel is the essential prerequisite to the exercise of other procedural safeguards. The denial of jury trials calls into question the validity and reliability of delinquency adjudications, both for initial dispositions and for collateral use such as sentence enhancements (Feld 2003b). In short, states do not provide juveniles with special procedural safeguards to protect them from their own immaturity and vulnerability nor do they provide them with the full panoply of criminal procedural safeguards to protect them from punitive state intervention. Instead, juvenile courts assure that youths continue to “receive the worst of both worlds”—treating juvenile offenders just like adult criminal defendants when formal equality redounds to their disadvantage, and providing less effective juvenile court procedures when they provide an advantage to the state.
It will take political courage for legislators to enact laws that benefit easily demonized groups, such as young offenders. It will take even greater political courage when enacting responsible youth crime policy exposes a politician to a charge by her opponent that she is “soft on crime.” Politicians overreacted during the 1990s and enacted get-tough waiver and criminal sentencing laws—offense exclusion, prosecutorial direct file, and mandatory LWOP sentences—that are inhumane, unjust, and counterproductive (CDC 2007). Public opinion supports policies to rehabilitate serious young offenders to reduce future crime, rather than simply to incarcerate them for longer periods (Nagin et al. 2006). Our greater scientific understanding of adolescent development, positive public support for less punitive policies, and low crime rates may strengthen legislators’ resolve to promote just and sensible youth and crime policies. A juvenile justice system based on (p. 652) adolescents’ diminished criminal responsibility and impaired adjudicative competence must provide youths with shorter sentences and greater procedural safeguards than they currently receive and protect them from harsh criminal justice policies.
Adolescent Development and Juvenile Justice. John D. and Catherine T. MacArthur Foundation, available at www.http//adjj.org.
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(1) . The U.N. Convention on the Rights of the Child [CRC] recognizes the special needs of children and their potential for rehabilitation. Because sentences of life without possibility of parole flatly contradict the idea that children have the potential to change, the CRC (Article 37a) provides that “Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”
(2) . Sixty percent of these youth were first offenders. The vast majority were convicted of murder, but more than one-quarter were convicted of felony murder, where a youth participated in a robbery or burglary during which a co-defendant committed murder without his knowledge or intent (Human Rights Watch 2005, 1–2).
(3) . Ten states mandate additional procedural requirements for juveniles beyond the “totality” approach endorsed by Fare (Feld 2006a, 2006b). These jurisdictions require the presence of a parent or other “interested adult” at a juvenile’s interrogation as a prerequisite to a valid waiver of Miranda rights. These states presume that most juveniles lack competence to exercise Miranda rights unaided and require an adult’s assistance. They assume that a parent’s presence would enhance juveniles’ understanding of rights, mitigate the dangers of unreliable statements, provide an independent witness of what occurs during interrogation, and reduce police coercion (e.g., State v. Presha, 748 A.2d 1108 [N.J. 2000]). Most commentators endorse parental-presence safeguards even though empirical research and experience provide substantial reason to question the validity of the assumptions or the rule’s usefulness (Feld 2006a, 2006b).
(4) . Maximization techniques intimidate suspects and impress on them the futility of denial, while minimization techniques provide moral justifications or face-saving alternatives to enable them to confess (Leo 1996, 2008; Kassin and Gudjonsson 2004; Kassin 2005).
(5) . Several other factors contribute to juveniles’ appearance without counsel. Public-defender legal services may be inadequate in non-urban areas (ABA 1995; Feld and Schaefer 2010). Judges may give cursory advisories, imply that a rights colloquy and waiver are just a legal technicality, and readily find waivers by juveniles in order to ease courts’ administrative burdens (ABA 1995; Cooper, Puritz, and Shang 1998; Berkheiser 2002; Bookser 2004). Judges may not appoint counsel if they expect to impose a non-custodial sentence (Lefstein, Stapleton, and Teitelbaum 1971; Feld 1989; Burrus and Kempf-Leonard 2002).