LINCOLN-DOUGLAS DEBATE
LINCOLN-DOUGLAS DEBATE
NFL Topic, January-February 2011
Dr. John F. Schunk, Editor
“Resolved: In the United States, juveniles charged with violent felonies ought to be treated as adults in the criminal justice system.”
AFFIRMATIVE
A01. JUVENILE CRIME IS A SCOURGE ON AMERICA
A02. JUVENILE SYSTEM FAILS TO DETER CRIME
A03. TRANSFER TO ADULT COURT INCREASES PUNISHMENT
A04. INCREASED PUNISHMENT DETERS JUVENILE CRIME
A05. INCAPACITATION DECREASES JUVENILE CRIME
A06. PAST CRIME DECREASES WERE DUE TO TOUGHER LAWS
A07. MUST TRANSFER VIOLENT JUVENILES TO ADULT COURT
A08. JUDGES CAN DETERMINE WHICH JUVENILES TO TRANSFER
A09. VIOLENT JUVENILES ARE TRANSFERRED TO ADULT COURT
A10. BRAIN DEVELOPMENT STUDIES ARE FLAWED
A11. JUVENILES ARE COMPETENT TO STAND TRIAL AS ADULTS
A12. TRANSFERS ARE NOT UNFAIR TO MINORITIES
A13. LIFE-WITHOUT-PAROLE IS FAIR FOR VIOLENT JUVENILES
NEGATIVE
N01. JUVENILE CRIME IS DECREASING SHARPLY
N02. PREDICTIONS OF JUVENILE CRIME WAVE WERE BOGUS
N03. HARSH JUVENILE LAWS ARE BEING ROLLED BACK
N04. DECREASE IN JUVENILE CRIME NOT DUE TO TOUGH LAWS
N05. JUVENILE SYSTEM PROMOTES REHABILITATION
N06. JUVENILE BRAIN IS VERY DIFFERENT FROM ADULT BRAIN
N07. TRANSFER TO ADULT COURT IS A FLAWED SYSTEM
N08. TRANSFER TO ADULT COURT INCREASES RECIDIVISM
N09. ADULT PRISON FOR JUVENILES IS CRUEL PUNISHMENT
N10. ADULT COURT STIGMATIZES JUVENILES FOR LIFE
N11. TRANSFER TO ADULT COURT IS DISCRIMINATORY
N12. ADULT COURT OFTEN GIVES MORE LENIENT SENTENCE
N13. LIFE-WITHOUT-PAROLE IS UNJUSTIFIED FOR JUVENILES
[pic]
S-K PUBLICATIONS
PO Box 8173
Wichita KS 67208-0173
PH 316-685-3201
FAX 316-685-6650
debate@
SK/A01. JUVENILE CRIME IS A SCOURGE ON AMERICA
1. VIOLENT JUVENILE CRIME IS ON THE INCREASE
SK/A01.01) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, p. 195. Youth violence today "is much more serious, much more complex and it's spreading," says Carl Taylor, a Michigan State University sociologist who has studied the phenomenon for decades. Once limited largely to hardcore street gangs, he says, the problem now is "transcending race, class and gender.”
SK/A01.02) Laurence Steinberg [Professor of Psychology, Temple U.], THE FUTURE OF CHILDREN, Fall 2008, GALE CENGAGE LEARNING, Expanded Academic ASAP. Juvenile crime rates, which have risen and fallen cyclically for four decades, will likely rise again, though perhaps not to the extremes of the early 1990s. Indeed, although rates continue to be low, they have crept up recently; in the past year or two, violent crime by juveniles has edged above the 2004 rates, which were the lowest in nearly two decades.
SK/A01.03) Elizabeth Brown, SOCIAL JUSTICE, Spring 2009, p. 102, GALE CENGAGE LEARNING, Expanded Academic ASAP. The number of people arrested for violent crimes has increased by two-thirds in the past 10 years. The number of children arrested for murder ... has doubled in the past 10 years.
SK/A01.04) Karla J. Grady [Hamilton County, OH, Municipal Court Judge], THE CINCINNATI POST, December 24, 2007, p. A9, GALE CENGAGE LEARNING, Custom Newspapers. Having served as a Hamilton County Juvenile Court judge for three years, I have witnessed first hand the steady rise in juvenile crime and other contact with the court system. Having served as an assistant Hamilton County prosecutor for 14 years and a Hamilton County Municipal Court judge for 10 years, I have seen the tragic consequences of juvenile offenders moving on to a life of adult crime. There is no denying that juvenile crime is a growing problem.
2. JUVENILE CRIME IS WAY TOO HIGH
SK/A01.05) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 57. Juvenile crime rates are unacceptably high, and yet the severity of punishments for juveniles has been diminishing. Figure 1 shows the crime rates for various age groups. While these numbers dropped over the last decade, the crime rate among young Americans is still higher than the overall crime rate. Adults are being punished more harshly every day, sometimes with draconian sentences, while juveniles get away with murder. The seriousness and heinousness of juvenile crimes has been getting worse over time.
SK/A01.06) Paul Pinkham, THE FLORIDA TIMES UNION, November 10, 2009, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. But Florida Solicitor General Scott Makar argued in both cases Monday that sentencing decisions are best left to individual states to decide. He asked the justices to consider the dramatic rise in violent juvenile crime that led to stiffer sanctions in the 1990s. "What they're asking ... goes against national consensus and national trends," Makar contended. In both cases, he said, the level of violence was "off the scale."
SK/A02. JUVENILE SYSTEM FAILS TO DETER CRIME
1. JUVENILE SYSTEM SANCTIONS FAIL TO DETER CRIME
SK/A02.01) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 920. 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. "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.
SK/A02.02) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 915. "Family Court is no deterrent," said Caspari [Washington, D.C. lawyer]. "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."
SK/A02.03) THE FLORIDA TIMES UNION, January 23, 2007, p. B8, GALE CENGAGE LEARNING, Custom Newspapers. One of the greatest obstacles to reversing violent crime across the state is fixing a broken juvenile justice system, which doesn't have enough consequences for repeat offenders, law enforcement officials said Monday. Federal lawmakers and community leaders convened with state and local law enforcement for the second time in six months to discuss ways to combat an increase in crime across the state, including crimes committed by juvenile repeat offenders. At the meeting, Orlando Police Chief Michael McCoy said juveniles are committing more crimes because they don't face appropriate punishment.
2. IT IS INFERIOR DETERRENT TO TRANSFER TO ADULT COURT
SK/A02.04) Sharon Cohen, THE RECORD (Bergen County, NJ), December 2, 2007, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. State Attorney Harry Shorstein of Jacksonville, Fla., has his own approach. "I think I've created my own juvenile justice system," he says. "The secret is not choosing punishment versus prevention, but using both." In 16 years, Shorstein's office has transferred more than 2,600 juvenile cases to adult court. Almost all those who've broken the law go to jail for about a year, where they live separately from adults, attend school and receive social services. If they stay out of trouble while locked up, and for two years of probation, they don't get a record. "I believe crime is like gymnastics," he says. "It really is a young person's sport. If you incapacitate a 15- or 16-year-old for a year, you can prevent more crime than if you imprison a 22-year-old for life."
SK/A03. TRANSFER TO ADULT COURT INCREASES PUNISHMENT
1. NEW LAWS HAVE FACILITATED TRANSFER TO ADULT COURT
SK/A03.01) Jeffrey J. Shook [Asst. Professor of Law, U. of Pittsburgh] & Rosemary C. Sarri [Professor Emeritus of Social Work, U. of Michigan], THE WAYNE LAW REVIEW, Winter 2008, LEXISNEXIS Academic, pp. 1728-1729. Legislation easing the transfer of juveniles to the adult criminal court has been a major component of juvenile code changes over the last several decades. Between 1992 and 1997 alone, forty-five states and the District of Columbia enacted at least one legislative change that eased the process of waiving juveniles to the adult criminal justice system by lowering or eliminating minimum ages for transfer eligibility, expanding the range of offenses eligible for transfer, focusing transfer criteria on offense-based characteristics, and shifting decision making discretion from judges to prosecutors.
SK/A03.02) Jeffrey J. Shook [Asst. Professor of Law, U. of Pittsburgh] & Rosemary C. Sarri [Professor Emeritus of Social Work, U. of Michigan], THE WAYNE LAW REVIEW, Winter 2008, LEXISNEXIS Academic, p. 1730. Twenty-nine states now employ statutory exclusion provisions and fifteen states employ prosecutorial discretion provisions, representing a major shift in how the decision to treat a juvenile as an adult is made. In large part, though not exclusively, these provisions focus on specific groups of violent and serious offenders and critics and proponents alike contend that they will reduce barriers-for example, judges-to the transfer of youth to the criminal justice system.
2. GOAL OF TRANSFER TO ADULT COURT IS INCREASED PUNISHMENT
SK/A03.03) Jeffrey J. Shook [Asst. Professor of Law, U. of Pittsburgh] & Rosemary C. Sarri [Professor Emeritus of Social Work, U. of Michigan], THE WAYNE LAW REVIEW, Winter 2008, LEXISNEXIS Academic, pp. 1725-1726. Over the last several decades, almost every state in the United States has enacted legislative changes easing the process of treating juveniles as adults in the justice systems. The rationales for these changes generally centered on the perception that the rising juvenile crime rates in the late 1980s and early 1990s signified the emergence of an increasingly "dangerous" and "sophisticated" juvenile offender and that the juvenile court did not possess the tools to either adequately rehabilitate or punish this offender. Proponents argued that transferring juveniles to the adult criminal justice system was a necessary alternative because it would provide adequate punishment for these offenders and promote public safety. Thus, states passed legislation that sought to both increase the number of youth eligible to be transferred to the criminal justice system and to create decision-making mechanisms to ensure that more youth would be transferred and sentenced as adults.
SK/A03.04) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, p. 1170. One of the major planks of the "get tough" platform is the proposition that juveniles who commit an "adult crime" should do "adult time." This now infamous slogan refers to the practice of juvenile transfer to criminal court, or "the transfer of youth to the jurisdiction of the adult criminal court." Transfer is a severe sanction that can result in extended sentences, longer trials, and felony convictions. Juvenile transfer has always been a mechanism of the juvenile justice system in the United States.
SK/A03.05) Jeffrey J. Shook [Asst. Professor of Law, U. of Pittsburgh] & Rosemary C. Sarri [Professor Emeritus of Social Work, U. of Michigan], THE WAYNE LAW REVIEW, Winter 2008, LEXISNEXIS Academic, p. 1726. While a number of studies have examined the sentencing of juveniles tried as adults, none to date have focused on changes in the commitment of juvenile offenders to adult prisons. Prison commitments are an important indicator of the consequences of these policy changes because the goal of treating a juvenile as an adult is that he or she will be punished more significantly, presumably with a prison sentence, than if retained in the juvenile court.
3. TRANSFER TO ADULT COURT INCREASES INCARCERATION
SK/A03.06) Jeffrey J. Shook [Asst. Professor of Law, U. of Pittsburgh] & Rosemary C. Sarri [Professor Emeritus of Social Work, U. of Michigan], THE WAYNE LAW REVIEW, Winter 2008, LEXISNEXIS Academic, p. 1765. This Article adds to the knowledge base by examining the commitment of juveniles to adult prisons over a twenty-year period and found that there has, in fact, been a significant increase in the commitment of juveniles to adult prisons in Michigan over this period. Further, it is clear from our data that a broader population of juveniles was increasingly committed to adult prisons in Michigan. In part, this increase is directly attributable to Michigan's legislative reforms, particularly the shift to and consolidation of power in the prosecutor's office.
SK/A03.07) Jeffrey J. Shook [Asst. Professor of Law, U. of Pittsburgh] & Rosemary C. Sarri [Professor Emeritus of Social Work, U. of Michigan], THE WAYNE LAW REVIEW, Winter 2008, LEXISNEXIS Academic, pp. 1731-1732. At the same time, there is some agreement among scholars that these policies have led to increases in the number of youth transferred to and imprisoned in the adult criminal justice system. Donna Bishop estimated that during the mid to late 1990s, between thirty thousand and forty thousand juveniles were transferred to the criminal court in addition to the approximately one hundred eighty thousand to two hundred twenty thousand youth she estimated were processed in the adult court for crimes committed before the age of eighteen in states where the jurisdiction of the juvenile court ended prior to age eighteen. The number of youth she believed to be transferred to the criminal court represented a substantial increase over prior years and was driven, in her opinion, by youth transferred through prosecutorial discretion and statutory exclusion provisions.
4. SENTENCES ARE MORE SEVERE FOR VIOLENT OFFENDERS
SK/A03.08) Benjamin Steiner [Division of Criminal Justice, U. of Cincinnati] & Emily Wright, JOURNAL OF CRIMINAL LAW & CRIMINOLOGY, Summer 2006, LEXISNEXIS Academic, p. 1457. Studies that examine sentence length or time served for waived youth show that violent offenses earn longer sentences in criminal court than those typically imposed in the juvenile system, while non-violent offenses yield longer sentences in the juvenile system. In addition, Kurlychek and Johnson found that even when all legal and many extralegal factors were controlled for, juveniles waived to criminal court were sentenced to longer sentences than young adults between the ages of eighteen and twenty-four who were sentenced over the same period of time.
SK/A03.09) Benjamin Steiner [Division of Criminal Justice, U. of Cincinnati] & Emily Wright, JOURNAL OF CRIMINAL LAW & CRIMINOLOGY, Summer 2006, LEXISNEXIS Academic, p. 1456. Studies assessing sentencing outcomes of juveniles waived to criminal court have considered whether transferred juveniles were sentenced to incarceration or probation, as well as how long their sentences were. With regard to the former, findings from some studies indicate that juveniles are more likely to receive probation sentences when transferred to criminal court than if they had proceeded through the juvenile system. Other research indicates that the sentence outcome is contingent on offense type: non-violent offenders tend to receive more incarceration sentences in the juvenile court, while violent offenders tend to receive prison sentences more often in criminal court.
SK/A03.10) Megan C. Kurlychek & Brand D. Johnson, CRIMINOLOGY, August 2010, p. 725, GALE CENGAGE LEARNING, Expanded Academic ASAP. The study investigates the punishment of juveniles transferred to adult court by testing competing theories on the salience of juvenile status in adult court. Evidence suggests that even after rigorous statistical matching procedures, juvenile offenders receive more severe punishment than do young adult offenders.
SK/A03.11) Martin Guevara Urbina [Associate Professor of Criminal Justice, Sul Ross State U.-Rio Grande College] & William Sakomoto White, SOCIAL JUSTICE, Spring 2009, p. 122, GALE CENGAGE LEARNING, Expanded Academic ASAP. Although a principal rationale for waivers is to assure more severe penalties, more recent studies indicate that, with the exception of violent offenders, most transferred juveniles receive community sentences (Advocasey, 2003; Bureau of Data and Research, 1999; Frazier, 1999; Lanza-Kaduce et al., 2002; Snyder et al., 2000).
SK/A04. INCREASED PUNISHMENT DETERS JUVENILE CRIME
1. STUDIES SHOW THAT JUVENILES ARE DETERRED BY PUNISHMENT
SK/A04.01) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 84. The economist Steven Levitt conducted the most direct study of juvenile crime. In his ground-breaking study, Professor Levitt examined the relationship between punishment and crime committed by juveniles for the period 1978-1993. In his study, he found that juveniles are deterred by punishment. He also found that similar punishments had similar effects on deterring juveniles and adults. During his study, he observed that juvenile crime rates, especially violent crime rates, had been rising faster than adult crime rates. He also noted that juvenile punishment had fallen in severity by half during this time period, while the severity of adult punishment had risen by over 60%. Using data from across the United States, Levitt was able to study the relationship between the variation in punishment across states and the rate of juvenile crime in those states.
SK/A04.02) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 84. Levitt looked at the impact of the incarceration rate on the number of crimes committed by juveniles. He found that there was a statistically significant negative relationship between the two variables. He estimated that for each delinquent incarcerated, there was a reduction of between 0.49 and 0.66 violent crimes per year.
SK/A04.03) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 87. What these studies show is that juveniles do respond to arrest rates and punishment, especially for violent crimes, and that they respond, as the Levitt study showed, by at least as much to punishment as adults do.
2. DECLINE IN PUNISHMENT SEVERITY INCREASES JUVENILE CRIME
SK/A04.04) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 85. Levitt concluded that the decline in the severity of juvenile punishment explains the relative increase in juvenile crime. In fact, he estimated that 60% of the increase in juvenile crime could be attributed to the drop in juvenile punishment.
SK/A05. INCAPACITATION REDUCES JUVENILE CRIME
1. FOCUS ON DETERRENCE OVERLOOKS EFFECT OF INCAPACITATION
SK/A05.01) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 918. 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.
2. INCAPACITATION REDUCES VIOLENT JUVENILE CRIME
SK/A05.02) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 918. 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 [Oregon District Attorney] 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.
3. PUBLIC SAFETY JUSTIFIES INCAPACITATION OF VIOLENT JUVENILES
SK/A05.03) Sarah Hammond, STATE LEGISLATURES, April 2008, p. 31, GALE CENGAGE LEARNING, Expanded Academic ASAP. There are still those who contend that safety must be No. 1 as legislatures update juvenile justice systems or send juveniles to adult court. They argue that juvenile offenders have become more violent. Kids are using guns instead of knives and knives instead of fists. Additionally, drug sales and substance abuse are widespread. A dangerous mix of guns, gangs and drugs have become endemic to our society and now cross over from cities into suburban areas.
SK/A05.04) Sharon Cohen, THE RECORD (Bergen County, NJ), December 2, 2007, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. Not everyone, though, believes there's reason to roll back harsher penalties adopted in the 1990s. "The laws that were changed were appropriate and necessary," says Minnesota prosecutor James Backstrom. "We need to focus on protecting the public that's No. 1. Then we can address the needs of the juvenile offenders." Each year about 200,000 defendants under 18 are sent directly or transferred to the adult system, known as criminal court, according to rough estimates.
SK/A06. PAST CRIME DECREASES WERE DUE TO TOUGHER LAWS
1. TOUGHER LAWS WERE WHY JUVENILE CRIME DECREASED
SK/A06.01) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 919. 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.
SK/A06.02) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 919. 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 reoffending.”
2. DECREASES IN JUVENILE CRIME PROVED ADULT TRANSFERS WORK
SK/A06.03) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 922. 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."
SK/A07. MUST TRANSFER VIOLENT JUVENILES TO ADULT COURT
1. TRANSFER OPTION MUST BE RETAINED FOR VIOLENT JUVENILES
SK/A07.01) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 194. It is obvious that transfer is necessary in some cases. Some juveniles, because of the heinousness of their acts or a prior record full of violent crimes, are not amenable to any sort of treatment available via the juvenile justice system and must be transferred to criminal court so they can receive - for incapacitation and punitive purposes - the harsh punishment they deserve.
SK/A07.02) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, pp. 201-202. Even the most idealistic proponent of the juvenile courts must admit that not every juvenile offender is amenable to treatment and rehabilitation. Some children, based on a combination of several factors, including age, background, prior record, and the seriousness of the offense they have committed, simply do not fit within the parameters of the juvenile justice system. Waiver was created for such a situation. The term "waiver" refers to the juvenile court giving up its original jurisdiction over the child, and transferring the offender to the criminal system, where he will be tried and punished as an adult.
SK/A07.03) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. It [the state] said the criminal justice system already takes such factors as age and the severity of the crime into account in many ways. And it said the state needed to retain the authority to mete out adult-style punishments to violent juvenile offenders who commit adult-like crimes. "Extending the rationale of Roper, developed in the limited context of the death penalty, to the exceptionally broad and virtually unlimited context of prison incarceration is compelled neither by legal logic nor by societal norms," the state said in its briefs.
SK/A07.04) Sharon Cohen, THE RECORD (Bergen County, NJ), December 2, 2007, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. But prosecutors say some kids are just too dangerous to be prosecuted as juveniles and then be released by age 21. If a criminal is likely to be free in a few years and do more harm, "then I come down on the side of risking the damage that is done by sending someone to prison," says Gary Walker, a Michigan prosecutor.
2. SEVERAL TRANSFER MECHANISMS APPLY TO VIOLENT JUVENILES
SK/A07.05) Sarah Hammond, STATE LEGISLATURES, April 2008, p. 31, GALE CENGAGE LEARNING, Expanded Academic ASAP. States have ways to try juveniles in adult court when the crime is particularly heinous. All but Nebraska, New Mexico and New York use judicial waiver, meaning a juvenile court judge can send a case to adult criminal court based on the circumstances of the offender or the alleged act. Twenty-nine states have statutory exclusion which automatically keeps certain juvenile offenders, usually based on age and offenses, from being tried in juvenile court. Fifteen states allow concurrent jurisdiction, sometimes called prosecutorial discretion or direct-file, which lets prosecutors decide how to file charges in many cases. Most states have some combination of these mechanisms.
SK/A08. JUDGES CAN DETERMINE WHICH JUVENILES TO TRANSFER
1. JUDGES DECIDE MOST TRANSFERS TO ADULT COURT
SK/A08.01) Andrea Knox [Ohio State U. College of Law], OHIO STATE LAW JOURNAL, 2009, LEXISNEXIS Academic, p. 1272. Judicial waiver is the most prevalent statutory device pushing children into criminal court. Forty-six states currently use judicial waivers. All states prescribe standards for juvenile judges to make their waiver decisions, but the determination is left largely to the judge's discretion. Some courts have presumptive waiver practices for certain offenses or alleged offenders.
SK/A08.02) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, p. 1171. When prosecuting a juvenile offender, a juvenile court judge may decide that it is in society's best interest to prosecute a serious offense in criminal court. Judicial waiver is the most common path for transfer, and juvenile court judges in forty-eight states and the District of Columbia have the option of waiving youth offenders to criminal court. In the states that allow judicial waiver, statutes usually require that the juvenile receives a hearing prior to transfer. During this hearing to determine an offender's suitability for transfer, judges must consider the guidelines set forth in Kent, as well as any other criteria stated in the jurisdiction's own transfer provisions.
2. JUDGES ARE COMPETENT TO MAKE SUCH DECISIONS
SK/A08.03) James C. Backstrom [County Attorney, Dakota County, MN], CQ RESEARCHER, November 7, 2008, p. 929. Prosecutors and judges thoughtfully and professionally enforce juvenile codes with fairness and impartiality every day, taking into consideration both mitigating factors - such as a juvenile offender's age, maturity and amenability to treatment and probation - and aggravating factors, such as the severity of the crime, the threat to public safety, the impact upon the victim and the offender's criminal history. After properly weighing these factors, the difficult decision to prosecute a juvenile offender as an adult is warranted in some cases.
SK/A08.04) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, pp. 194-195. Though many violent and repeat juvenile offenders leave society no choice but to transfer them into the criminal system and treat them as adults, this Note argues additionally that judicial waiver - though in need of reform itself - is the only way to make this crucial determination in a way that does not run converse to the goals of the juvenile system and to the good of society.
SK/A08.05) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 203. Most states incorporated the list of factors suggested in Kent into their judicial waiver statutes. These factors can roughly be broken down into two categories: danger to the public and amenability to treatment. The judge is then able to weigh the interests of the child against the interests of society and determine a fair outcome. Typically, if the child is in his late-teens, has committed a violent offense, has a serious prior record, and has not been responsive to prior treatment attempts, he will be waived to the criminal court. If, however, the offender is in his early-to-mid-teens, he has little to no record, and the crime is a relatively minor offense, the offender will be adjudicated in juvenile court and an attempt will be made to rehabilitate him. The framework of the waiver hearing allows juveniles to be protected by essential procedural safeguards but also allows the judge flexibility in using his discretion to determine the best result for the child.
SK/A08.06) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 210. Transfer for juveniles is warranted in two circumstances: first, when the juvenile cannot be helped through the rehabilitative efforts of the juvenile justice system; second, when the juvenile's offense was so heinous that the maximum punishment that the juvenile court can impose falls far short of what is necessary. Judicial waiver is the only transfer method that is able to fully and fairly take into consideration the interests of society and the juvenile offender before taking this serious step.
3. JUDICIAL WAIVER IS CONSISTENT WITH INDIVIDUALIZED JUSTICE
SK/A08.07) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 203. Judicial waiver is the only one of the three types of waiver that naturally comports with the goal of the juvenile justice system (namely, individualized treatment with a rehabilitative aim). Judicial discretion is the most common form of waiver, and all but four states use it, either as a sole means of transfer or in conjunction with the other methods. As in regular juvenile court adjudications, the judge is the key decision-maker in the waiver process.
SK/A08.08) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 204. The biggest advantage to judicial discretion is that it allows a juvenile offender to receive "an individualized determination as to which forum he should be subjected," and gives him "his day in court before the jurisdiction of the juvenile court can be terminated." If applied correctly, the procedural safeguards mandated by Kent, combined with the traditional flexibility of the judge's discretion, allows the judge to work within the premise of the juvenile justice system. The judge gets to see the youth offender, speak to him, and ask him questions; the judge then evaluates the offender based only on his set of circumstances, not on others with similar backgrounds or records.
4. SIGNIFICANT CHECKS PREVENT JUDICIAL ABUSE
SK/A08.09) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 204. Individual determinations, assuming they are done with care, ensure that only those children who cannot be helped by the juvenile justice system will be transferred to adult court. Aside from the ability to work towards the goal of rehabilitating juveniles, the system also provides checks on abuse of discretion by judges.
5. INCONSISTENCY DOES NOT MEAN INJUSTICE
SK/A08.10) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, pp. 204-205. The other main criticism of judicial discretion is that results are arbitrary and inconsistent. Arbitrariness is somewhat minimized because of the presence of procedural safeguards in waiver hearings, but concerns will remain as long as there are justices who are not properly trained or of the proper temperament for the juvenile court. Inconsistent results cannot be considered a disadvantage of judicial waiver because they are "a product of individualized determinations based on the best interests of each juvenile." If anything, inconsistent results can serve as anecdotal evidence that the system is working and judges are making individualized determinations as they should be required to do. Judicial waiver is not perfect, but because of its flexibility and procedural safeguards for the juvenile, it is the best option for the necessary evil of waiver.
SK/A09. VIOLENT JUVENILES ARE TRANSFERRED TO ADULT COURT
1. TRANSFERS ARE RESERVED FOR MOST VIOLENT OFFENDERS
SK/A09.01) James C. Backstrom [County Attorney, Dakota County, MN], CQ RESEARCHER, November 7, 2008, p. 929. Prosecuting juvenile offenders in adult court is appropriate and necessary in certain cases to protect public safety and hold youths appropriately accountable for their crimes. Contrary to opponents’ claims, this sanction is not being overused by prosecutors. Few jurisdictions prosecute more than 1-2 percent of juvenile offenders as adults. This is a tool reserved for the most serious, violent and chronic offenders, who should face more serious consequences for their crimes than those available in juvenile court.
SK/A09.02) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 204. Defenders of judicial discretion argue that judges are most adept at "selecting serious, violent, and chronic offenders for transfer." Zimring notes, "[a] well-functioning juvenile justice system will transfer only a tiny number of very serious offenders into the criminal courts."
2. JUVENILES MOST LIKELY TO RECIDIVATE ARE TRANSFERRED
SK/A09.03) Jeffrey J. Shook [Asst. Professor of Law, U. of Pittsburgh] & Rosemary C. Sarri [Professor Emeritus of Social Work, U. of Michigan], THE WAYNE LAW REVIEW, Winter 2008, LEXISNEXIS Academic, pp. 1764-1765. Further, David Myers found that the transferred youth in his sample who received probation or shorter prison sentences were more likely to recidivate than those who received longer sentences. Given our finding that these are the "type" of youth who are increasingly being committed to adult prisons, and, presumably, are increasingly being transferred to the criminal court, this trend has significant implications for public safety in Michigan in that the juvenile most likely to recidivate is increasingly being committed to adult prisons.
SK/A10. BRAIN DEVELOPMENT STUDIES ARE FLAWED
1. BRAIN DEVELOPMENT STUDIES ARE SPECULATIVE
SK/A10.01) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 63. The petitioner, the State of Missouri, responded to these briefs by disputing the science that suggested juveniles were neither culpable nor deterrable. They pointed out that the APA had claimed that juveniles were mature enough to decide whether to have an abortion without the need for parental supervision. In addition, they suggested that there was little difference between juveniles' cognitive capacities and that of adults.' As to the risk-taking, the petitioner pointed out that what adults label as risk-taking may be acceptable behavior for juveniles in order to gain experience and learning. Similarly, conduct that juveniles regard as rational may be regarded as irrational for adults. The petitioner also rebutted the claims of biological differences between adults and juveniles by questioning the scientific validity of the studies. The State of Missouri claimed that the studies were inconclusive and, at best, speculative.
2. THEY ARE ADVOCACY MASQUERADING AS SCIENCE
SK/A10.02) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. That brief, filed by the Center for Constitutional Jurisprudence, a public interest law firm based in Claremont, Calif., said evidence cited by those on the other side was far from being established as scientific fact. Such evidence might be the type of "developing" science that lawmakers might want to consider when making policy choices, said the CCJ, but it is not the type of evidence that a court should ever use to overturn those policy decisions, and it has yet to meet federal admissibility standards. "The argument that the juvenile brain is too insufficiently developed to constitutionally permit imposition of life in prison without the possibility of parole (LWOP) for the most heinous and violent criminal offenses is predicated on advocacy masquerading as science," the center said.
SK/A10.03) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. [U.S. Supreme Court Justice Clarence] Thomas also took issue with the evidence on adolescent brain and behavioral development cited by the majority, saying that even if such generalizations from social science are relevant to constitutional rulemaking, the majority had misstated the data on which it relies, which differentiates between adolescents for whom antisocial behavior is a fleeting symptom and those for whom it is a lifelong pattern.
3. JUVENILES ARE JUST AS RATIONAL AS ADULTS
SK/A10.04) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 106. If Roper is correct in assuming that juveniles are reckless, voracious consumers of the present, who have little fear of punishment because of their underdeveloped brains, then harsher punishments are needed to control them. The empirical evidence, however, suggests that juveniles are just as rational as adults, meaning that, at best, juveniles should be treated just like adults.
SK/A10.05) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 83. Three economists investigated whether children were rational, applying transitivity as a measure of rationality. They conducted a simple experiment where they asked several groups of children and adults to choose between a variety of choices. They conducted their experiments on a group of second graders whose average age was seven, a group of sixth graders whose average age was eleven, and a group of undergraduates whose average age was twenty-one. They found that, in all age categories, a portion of the group violated the transitivity axiom, and, therefore, could be classified as irrational. The seven-year-olds, for the most part, behaved rationally. However, a portion of them did not. The eleven-year-olds and twenty-one-year-olds behaved rationally. What was revealing was that, while the proportion of children who displayed irrational behavior dropped noticeably from the seven-year-olds to the eleven-year-olds, there was no noticeable drop in the proportion of irrationality from the eleven-year-olds to the twenty-one-year-olds. In other words, by the age of eleven, children have fully developed their basic cognitive skills for ranking preferences.
4. SOME JUVENILES ARE MORE MATURE THAN SOME ADULTS
SK/A10.06) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 64. In addition, O'Connor questioned the validity of comparing juveniles and adults as separate groups. Simply because the average youth is less mature than the average adult does not mean that the particular juvenile who commits a heinous crime is less culpable. There may be very mature and calculating youth and very immature and naive adults, Justice O'Connor argued.
SK/A10.07) D. Brian Woo [Pepperdine U. Law School], PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL, 2007, LEXISNEXIS Academic, pp. 481-482. Justice O'Connor also dissented along these lines. Although she conceded that juveniles are less mature than adults and therefore less culpable, she believed that "at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case." Rather than consider juveniles as a class in the aggregate, Justice O'Connor opined that age alone cannot be substituted as a measure of an individual's maturity or psychological development. According to her, this differs from the holding in Atkins, because mentally retarded defendants are, by definition, less culpable due to their lack of cognitive capacity. Hence, rather than adopt a brightline rule, the Court should allow the jury to factor in any mitigating evidence, i.e., youth or immaturity, when determining an appropriate sentence.
5. JUVENILES KNOW THE DIFFERENCE BETWEEN RIGHT AND WRONG
SK/A10.08) Peter Katel, CQ RESEARCHER, November 7, 2008, pp. 924-925. For his part, James C. Backstrom, the prosecutor in Dakota County, Minn., accepts the brain studies and even their possible relevance at sentencing. But, he adds, “There is a complete disconnect if you say that this is a basis why they shouldn’t be prosecuting kids as adults. I think a 16- or 17-year-old youth is fully capable of understanding right from wrong, and understanding that it’s wrong to murder, rape or torture someone.
SK/A10.09) James C. Backstrom [County Attorney, Dakota County, MN], CQ RESEARCHER, November 7, 2008, p. 929. Recent scientific studies have shown that the brain is not fully developed until the early to mid-20's and that the last portion of the brain to reach full maturity is the frontal lobe governing impulse control. While this may explain why some youths lack the reasoning ability to fully appreciate the consequences of their actions, it does not mean they should not be held accountable for their crimes. The vast majority of teenagers understand the difference between right and wrong and know it is wrong to torture or kill someone. This is why our laws rightly allow adult prosecution for these and other violent crimes.
SK/A10.10) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 925. In his dissent in Roper, [U.S. Supreme Court Justice Antonin] Scalia quoted from an earlier decision in which the court wrote that it was “absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one’s conduct to that most minimal of all civilized standards.”
6. IMPULSIVENESS ACTUALLY ARGUES FOR TOUGHER SENTENCES
SK/A10.11) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 57. This Article looks at the idea of juvenile culpability and maturity and whether a diminution of rational decision-making can logically require a lesser sentence than that which an adult would receive. The Supreme Court claimed that the diminished reasoning and greater impulsiveness and recklessness which characterizes juveniles mean that juveniles are not only less blameworthy, but also undeterrable. I argue that, if anything, these characteristics should lead to the opposite conclusion. If youth cannot be reasoned with, then the optimal thing to do is to raise the penalty to a degree that would deter them. This necessarily means raising the penalty above that which would be needed to deter someone who can be reasoned with.
SK/A10.12 Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 70. If juveniles are indeed risk-loving, then states seeking to deter juveniles from committing crimes would be better served by increasing penalties, in addition to devoting more resources to detection and successful prosecutions. Moreover, the state will need to increase penalties by a substantially larger amount than it would if it wanted to deter risk-averse individuals. Given that the Supreme Court's assumption was that adults are typically more risk-averse than juveniles, the implication of their logic is that penalties for juvenile should be much higher than those for adults.
SK/A10.13) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, pp. 74-75. If indeed juveniles are hasty and impulsive, the same is true of many adults. Yet, no one would, or could, claim to excuse these adults from any moral culpability if they committed a heinous crime. Pedophiles, for example, are characterized, according to many psychiatrists, as having impulse control disorders, and yet no one would claim that they should be less morally culpable than "normal" adults. In fact, the United States Supreme Court has upheld civil commitments of sexual offenders, after they have served their criminal sentences, because of the fear that such offenders will re-offend. Juveniles should, therefore, be no less culpable simply because they are impulsive. States, therefore, should be allowed to set punishments high enough to deter juveniles from committing crimes.
SK/A10.14) Moin A. Yahya [Asst. Professor of Law, U. of Alberta, Canada], PENN STATE LAW REVIEW, Summer 2006, LEXISNEXIS Academic, p. 80. According to the research, the probability of detection and conviction for many crimes is small. If juveniles behaved the same as Kahneman and Tversky's adults and over-estimated the probability of detection, then this would indeed be nirvana for law enforcement authorities. States would be able to deter a juvenile with a small fine or short jail sentence. On the other hand, if juveniles actually do behave differently from adults and underestimate small probability events, so that they were even more myopic about the odds of escaping with their crimes, then the implication would be that only harsher penalties would deter juveniles from committing crimes.
SK/A11. JUVENILES ARE COMPETENT TO STAND TRIAL AS ADULTS
1. JUVENILES ARE COMPETENT TO STAND TRIAL AS ADULTS
SK/A11.01) Joseph B. Sanborn Jr., JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, Winter 2009, p. 135, GALE CENGAGE LEARNING, Expanded Academic ASAP. Historically, competency to stand trial has focused upon the defendant's cognitive capacities. Research has demonstrated that juveniles, particularly those fourteen and fifteen years of age and older, have cognitive capacities that rival adults when it comes to making decisions about and consenting to medical procedures. Moreover, adolescents aged fifteen and older are no more likely than adults to suffer from what is called the "personal fable" (the belief that one's behavior is not governed by the same rules of nature that apply to everyone else), and are no less likely than adults to employ rational algorithms in decision-making.
SK/A11.02) Joseph B. Sanborn Jr., JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, Winter 2009, p. 135, GALE CENGAGE LEARNING, Expanded Academic ASAP. Contrary to the assertions of the DPs [developmental psychologists], the vast majority of juvenile defendants are competent to stand trial. Even focusing the research disproportionately on the most troubled (that is, detained) segment of juvenile offenders could not alter these results. The majority of DP research has found most juveniles, even at the tender age of eleven years, know and comprehend enough to satisfy what competency to stand trial requires. This should hardly be surprising, considering the very low threshold for competency to stand trial. The DPs' message that, as a group, even fourteen- and fifteen-year-olds are incompetent to stand trial lacks credibility. It is inconceivable that the four-year high school today is populated by youths among whom one-half are incompetent to stand trial.
2. ARGUMENTS AGAINST COMPETENCY ARE BOGUS
SK/A11.03) Joseph B. Sanborn Jr., JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, Winter 2009, p. 135, GALE CENGAGE LEARNING, Expanded Academic ASAP. Competency to stand trial is an individual phenomenon and not a categorical or group one. In order to be found incompetent to stand trial, it is not enough that juveniles merely differ or are generally less capable than adults. Individual juveniles must be incapable. There can be little doubt that there is a difference between the two populations generally and that youths overall are less capable than adults in many legal endeavors; more youths overall would likely be found to be incompetent to stand trial when compared to adults. The same can apply within categories of adults with regard to mental ability, educational attainment, gender, class, race, or age. If the DPs' [developmental psychologists’] logic carries, broad categories of adults will be incompetent to stand trial vis-a-vis other categories of adults.
SK/A11.04) Joseph B. Sanborn Jr., JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, Winter 2009, p. 135, GALE CENGAGE LEARNING, Expanded Academic ASAP. The DPs [developmental psychologists] rely again on the group idea in suggesting that simply because some or perhaps most youths of a particular age--for example, eleven to thirteen years old--would be found incompetent to stand trial, that amounts to a determination that all youths of that age should be considered incompetent. Ironically, the vast majority (70%) of adolescents of this age were competent to stand trial, according to the MacArthur Study. This did not prevent the authors of that study from concluding, however, that no juveniles of that age group should be transferred to criminal court due to being incompetent to stand trial in that forum, even though only 30% were "significantly impaired." According to this logic, if 30% or perhaps less of the mentally ill or retarded population were to be found incompetent to stand trial, that would mean no individual with this designation could be prosecuted for any crimes. But even mentally disabled defendants with significant difficulties in comprehension and communication must individually be found incompetent to stand trial.
SK/A12. TRANSFERS ARE NOT UNFAIR TO MINORITIES
1. JUVENILE CRIME BY MINORITIES IS DISPROPORTIONATELY HIGH
SK/A12.01) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, pp. 198-199. David Muhlhausen, a senior policy analyst at the conservative Heritage Foundation think tank, sees the issue differently. "It's unfortunate, but a lot of young minorities commit a lot of crime compared to young, white males,” he says. "We can argue about the reasons, but the fact is, young black males and young Hispanics have far higher rates of criminal activity than other groups. People who think the criminal-justice system is being discriminatory sort of have a false notion that the offending rates of all groups are equal, and that's simply not true."
2. VIOLENT JUVENILE CRIME VICTIMIZES MINORITIES THE MOST
SK/A12.02) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, p. 195. What's more, youth violence disproportionately affects minorities. Among young people 10 to 24 years of age, homicide is the leading cause of death for African-Americans and second-highest cause for Hispanics, according to the Centers for Disease Control and Prevention.
SK/A12.03) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, p. 195. “What we’re talking about [youth violence] is not remotely evenly socially distributed,” says Kennedy [Director, Center for Crime Prevention and Control, John Jay College of Criminal Justice]. “It is far worse among minorities than among whites, and among African-Americans than other minorities.”
SK/A13. LIFE-WITHOUT-PAROLE IS FAIR FOR VIOLENT JUVENILES
1. LIFE-WITHOUT-PAROLE IS APPROPRIATE FOR HEINOUS CRIMES
SK/A13.01) Paul Pinkham, THE FLORIDA TIMES UNION, November 10, 2009, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. Justice Samuel Alito recited a litany of crimes committed by juveniles that he said were so horrific he wouldn't have imagined them possible. "There are some individuals short of their 18th birthday who deserve life in prison without parole," he said. Justice Antonin Scalia said the inmates' arguments assume that the only goal of punishment is rehabilitation or deterrence. The state has an interest in retribution as well, he said.
SK/A13.02) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, p. 205. Charles D. Stimson and Andrew M. Grossman of the conservative Heritage Foundation argued in a report last year that a life-without-parole sentence “for the very worse juvenile offenders is reasonable, constitutional and (appropriately) rare. In response to the Western world’s worst juvenile crime problem, U.S. legislators have enacted commonsense measures to protect their citizens and hold these dangerous criminals accountable.”
SK/A13.03) National District Attorneys Association, CQ RESEARCHER, March 5, 2010, p. 209. Sentencing a juvenile to life imprisonment without the possibility of parole is a weighty matter. Prosecutors do not seek such punishment lightly, nor do courts impose it without careful consideration and compelling reasons. But youthful offenders sometimes commit heinous crimes - rapes, kidnappings, and violent robberies and assaults that may leave the victim maimed for life, or worse. Many do so with full knowledge of the wrongfulness of their actions, and with callous disregard of both the demands of the law and the rights of their victims. And many are already repeat offenders with histories of recidivism.
SK/A13.04) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 922. However, Backstrom [Dakota County, MN, Prosecutor] 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."
2. IT IS NOT CRUEL AND UNUSUAL PUNISHMENT
SK/A13.05) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. The National District Attorneys Association, on the other hand, argued in its brief against the imposition of a categorical ban on life without parole for juveniles. It said such a "one-size-fits-all" approach was not mandated by the Constitution and would also run afoul of the court's holding that in noncapital cases the Eighth Amendment only prohibits sentences that are "grossly disproportionate" to the underlying crime. Another brief on the state's behalf by 19 other state attorneys general said life without parole for certain juvenile offenders is needed by states that must respond to ongoing violent juvenile crime. "No one wants to believe that young people can commit horrible crimes. But sometimes they do. And no one wants to consider whether they should serve lengthy prison terms. But states must consider it, since they are responsible to their own citizens for protecting them, for deterring crime, for assuaging the victims, and for punishing the guilty," it said.
3. NATIONAL CONSENSUS SUPPORTS LIFE-WITHOUT-PAROLE
SK/A13.06) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. A third brief on the state's behalf by the National Organization of Victims of Juvenile Lifers, a group representing the families of people murdered by juvenile offenders, cited what it said is an "overwhelming national consensus" in favor of a life-without-parole sentence for juvenile offenders who show an exceptional disregard for human life. "Courts, legislatures and American people have strongly approved of these sentences as an effective and lawful device to deter juvenile crime and protect law-abiding citizens," it said. "A criminal justice system which categorically denies constitutional and proper sentences for juvenile offenders perpetuates no justice at all."
SK/A13.07) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, p. 205. “An overwhelming national consensus exists that a life-without-parole sentence is appropriate and constitutional for juvenile offenders who show an exceptional disregard for human life,” the National Organization of Victims of Juvenile Lifers argued in a brief filed in the Supreme Court case. “Courts, legislatures and American people have strongly approved of these sentences as an effective and lawful device to deter juvenile crime and protect law-abiding citizens.
SK/N01. JUVENILE CRIME IS DECREASING SHARPLY
1. VIOLENT JUVENILE CRIME HAS SIGNIFICANTLY DECREASED
SK/N01.01) Sean E. Smith [Thomas Jefferson School of Law], THOMAS JEFFERSON LAW REVIEW, Spring 2010, LEXISNEXIS Academic, pp. 349-350. Serious violent juvenile crimes declined in the new millennium, dropping from 52 crimes per 1,000 juveniles in 1993 to 11 crimes per 1,000 juveniles in 2007. Nevertheless, the public, still engulfed by moral panic and often unaware of reality, continues to urge legislators to "get tough" on delinquency.
SK/N01.02) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, p. 195. Juvenile crime is down sharply from the mid-1990s, when it spiked dramatically and some predicted an impending wave of adolescent “superpredators." The Justice Department says, for example, that the juvenile murder arrest rate in 2008 was 74 percent less than its peak in 1993.
2. JUVENILE ARREST RATES ARE AT AN ALL-TIME LOW
SK/N01.03) Sean E. Smith [Thomas Jefferson School of Law], THOMAS JEFFERSON LAW REVIEW, Spring 2010, LEXISNEXIS Academic, p. 342. Presently, California legislators are considering the enactment of a bill that would augment Proposition 21's impediment for minors to rehabilitate. The pending legislation permanently preserves juvenile court records of more offenses in addition to those preserved by Proposition 21. The supporters of preserving more juvenile court records do not adequately understand the current circumstances of juvenile crime, nor do they appreciate the potentially harmful impact of their proposed bill. Juvenile arrest rates are at an all-time low, contradicting the supporters' concern over juvenile crime.
3. JUVENILE CRIME LEVELED OFF ONLY FOR A SHORT TIME
SK/N01.04) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, p. 197. But Barry Krisberg, former president of the National Council on Crime and Delinquency and now a distinguished senior fellow at the University of California, Berkeley, law school, says youth crime "is way down from the peak in the middle 1990s." Since then, he adds, "it leveled off a little bit, and the latest numbers suggest it’s down again. There's hardly a surge of it at any level."
SK/N02. PREDICTIONS OF JUVENILE CRIME WAVE WERE BOGUS
1. EXAGGERATED PUBLIC FEARS GAVE RISE TO GET-TOUGH LAWS
SK/N02.01) Sean E. Smith [Thomas Jefferson School of Law], THOMAS JEFFERSON LAW REVIEW, Spring 2010, LEXISNEXIS Academic, p. 347. The second source of change arose through statutes enacted in the 1980s. These statutes were enacted to hold juveniles more accountable for their misconduct. Exaggerated media portrayals of violent juvenile crimes created a widespread fear of a juvenile crime epidemic. The statutes essentially shifted the focus of the juvenile court system from rehabilitation to retribution.
SK/N02.02) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, p. 1169. Beginning in 1994, just as the nation began to fear an epidemic of youth violence, juvenile crime rates started to decrease. Rather than reassuring the public that juvenile crime was rapidly falling, the topic received even more media attention. The nation's preoccupation with juvenile delinquency stems from a small percentage of truly horrific crimes that occurred in the 1990s.
SK/N02.03) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, p. 1179. Additionally, the increased rate in juvenile crime in the early 1990s does not necessarily mean more children became criminals. Several longitudinal studies established that approximately 6% of childhood offenders matured into criminals responsible for 50% of all crime. Therefore, it is unnecessary to lock up more children to quell the public's perception that more kids are becoming killers.
SK/N02.04) Barry C. Feld [Professor of Law, U. of Minnesota], JOURNAL OF LAW & FAMILY STUDIES, 2007, LEXISNEXIS Academic, p. 13. Within the past decade, researchers, scholars, policy makers, the public, and even some state officials have recognized that many legislatures overreacted in adopting excessively harsh and counter-productive policies. Despite political "sound-bites" that equate even young children with adults - "old enough to do the crime, old enough to do the time" - developmental psychological research identifies the many ways in which youths differ from adults. The neuroscience of adolescent brain development provides a deeper understanding of why children's decisions and judgment differ from adults.
2. PREDICTED JUVENILE SUPERPREDATORS NEVER MATERIALIZED
SK/N02.05) Sharon Cohen, THE RECORD (Bergen County, NJ), December 2, 2007, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. A series of horrific crimes by kids rattled the nation: A sixth-grader shot and killed a stranger. A 12-year-old stomped and beat a younger playmate. Two grade-schoolers dropped a 5-year-old 14 stories to his death. Some academics warned that a new generation of "superpredators" would soon be committing mayhem. It never happened. Drug trafficking declined. An improved economy produced more jobs. And the rate of juvenile violent crime arrests plummeted 46 percent from 1994 to 2005, according to federal figures.
SK/N02.06) Andrea Knox [Ohio State U. College of Law], OHIO STATE LAW JOURNAL, 2009, LEXISNEXIS Academic, p. 1272. The national attention garnered by increased violent crime by juveniles in the late 1980s and early 1990s spurred a movement in nearly every state legislature to "get tough" on crime and create more punitive measures for minors. Predictions were made that a juvenile blood bath would strike the nation by the turn of the century. Although these predictions proved false, and crime fell consistently after 1994, states created criminal-like mechanisms to treat more children as adults.
SK/N03. HARSH JUVENILE LAWS ARE BEING ROLLED BACK
1. STATES ARE ROLLING BACK HARSH JUVENILE PUNISHMENT
SK/N03.01) Laurence Steinberg [Professor of Psychology, Temple U.], THE FUTURE OF CHILDREN, Fall 2008, GALE CENGAGE LEARNING, Expanded Academic ASAP. American juvenile justice policy is in a period of transition. After a decade of declining juvenile crime rates, the moral panic that fueled the "get-tough" reforms of the 1990s and early 2000s--reforms that eroded the boundaries between juvenile and criminal court and exposed juvenile offenders to increasingly harsh punishments--has waned. State legislatures across the country have reconsidered punitive statutes they enacted with enthusiasm not so many years ago. What we may be seeing now is a pendulum that has reached its apex and is slowly beginning to swing back toward more moderate policies, as politicians and the public come to regret the high economic costs and ineffectiveness of the punitive reforms and the harshness of the sanctions.
SK/N03.02) Laurence Steinberg [Professor of Psychology, Temple U.], THE FUTURE OF CHILDREN, Fall 2008, GALE CENGAGE LEARNING, Expanded Academic ASAP. First, in the wake of the Supreme Court's 2005 Roper v. Simmons opinion abolishing the juvenile death penalty, several state legislatures have repealed, or are considering repealing, statutes imposing sentences of life without parole on juvenile murderers. Other states have scaled back, often in response to mounting economic costs, automatic transfer laws that send youth to the adult criminal system by statutory exclusion. Many states have increased funding for community-based treatment programs as alternatives to institutional placement. In a few states where youth under eighteen are prosecuted in adult criminal court instead of juvenile court, promising efforts are under way to increase the age to eighteen, as it is in most states.
SK/N03.03) Barry C. Feld [Professor of Law, U. of Minnesota], JOURNAL OF LAW & FAMILY STUDIES, 2007, LEXISNEXIS Academic, p. 13. More recently, the Supreme Court and a few states have taken tentative steps to adopt policies to reverse the punitive trend and to restore a semblance of rationality to youth crime policies. The Court in Roper v. Simmons barred the death penalty for children. A few states have mitigated the harshest penalties imposed on youths, such as life without parole (LWOP). Others have considered increasing the ages of juvenile court jurisdiction and waiver to criminal court.
SK/N03.04) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, p. 200. Beginning this year, Connecticut raised, from 16 to 17, the age at which youths accused of crimes are automatically tried in adult courts. (The age rises to 18 in July 2012.) That left only two states -- New York and North Carolina -- that set the bar at 16. Connecticut's move reflects a broad national trend of easing away from "get tough" juvenile-justice strategies instituted during the 1980s and '90s, when many feared the onset of a massive new crime wave.
SK/N03.05) Laurence Steinberg [Professor of Psychology, Temple U.], THE FUTURE OF CHILDREN, Fall 2008, GALE CENGAGE LEARNING, Expanded Academic ASAP. Several developments have converged to change the direction of the nation's youth crime policy. Among the most important was the steady decline in juvenile crime beginning in 1994. In the same way that the upward trend in juvenile violence during the 1980s set the stage for the spate of punitive legislation during the 1990s, this downward trend has opened the door to discussions about returning to more moderate policies.
2. FAILURE OF GET-TOUGH LAWS IS THE REASON FOR THE CHANGE
SK/N03.06) Sharon Cohen, THE RECORD (Bergen County, NJ), December 2, 2007, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. A generation after America decided to get tough on kids who commit crimes sometimes locking them up for life the tide may be turning. States are rethinking and, in some cases, retooling juvenile sentencing laws. They're responding to new research on the adolescent brain, and studies that indicate teens sent to adult court end up worse off than those who are not: They get in trouble more often, they do it faster and the offenses are more serious. "It's really the trifecta of bad criminal justice policy," says Shay Bilchik, a former Florida prosecutor who heads the Center for Juvenile Justice Reform at Georgetown University. "People didn't know that at the time the changes were made. Now we do, and we have to learn from it."
SK/N03.07) Sharon Cohen, THE RECORD (Bergen County, NJ), December 2, 2007, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. Juvenile crime is down, in contrast to the turbulent 1990s when politicians vied to pass laws to get violent kids off the streets. Now, in calmer times, some champion community programs for young offenders to replace punitive measures they say went too far. "The net was thrown too broadly," says Howard Snyder, director of systems research at the National Center for Juvenile Justice. "When you make these general laws ... a lot of people believe they made it too easy for kids to go into the adult system and it's not a good place to be." Some states are reconsidering life without parole for teens. Some are focusing on raising the age of juvenile court jurisdiction, while others are exploring ways to offer kids a second chance, once they're locked up or even before. "There has been a huge sea change ... it's across the country," says Laurie Garduque, a program director at the MacArthur Foundation, which is heavily involved in juvenile justice reform.
SK/N04. DECREASE IN JUVENILE CRIME NOT DUE TO TOUGH LAWS
1. DECREASE IN JUVENILE CRIME NOT DUE TO TOUGH LAWS
SK/N04.01) Peter Katel, CQ RESEARCHER, November 7, 2008, pp. 915-916. 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."
2. TRANSFER TO ADULT COURT HASN’T REDUCED JUVENILE CRIME
SK/N04.02) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, p. 732. Do these harsh sentences actually deter young people from committing crime? Are juveniles even cognizant of the consequences that adult courts can impose, and if so, does such an understanding stop the children from criminal behavior? The answer is definitely not. As juvenile crime rates grew, more states began authorizing adult sentences -- but the minors clearly did not connect those consequences to their actions, because the number of violent juvenile crimes grew twice as fast between 1987 and 1991 as arrests for adults. In fact, the number of juvenile crimes quadrupled from 1965 to 1990. In the 1990's, the number of children committing murder, rape, robbery, and assault increased by a staggering 93%.
SK/N04.03) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, p. 732. Further, harsh treatment results in a high rate of recidivism, which contributes to the high crime rate. A study in Idaho found that the legislative waiver system had absolutely no deterrent effect. In fact, arrest rates for serious and violent crimes increased 18% after Idaho enacted this statute.
SK/N04.04) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, pp. 1180-1181. Recent juvenile crime statistics are unclear on the deterrent effect of transfer laws. As discussed above, juvenile crime rates rose in the 1980s and early 1990s. A sharp decrease in youth violence followed from 1994 until 2004. Proponents of juvenile transfer may attribute this decrease to the enactment and improvement of transfer provisions; however, the decade-long decline in juvenile crime ended in 2004. The juvenile arrest rate for violent crimes increased by 2% in 2005 and an additional 4% in 2006. Despite the recent increases, the juvenile crime rates for all offense types remain well below the levels seen in the 1990s. It is therefore unclear whether juvenile transfer laws had a marked effect on juvenile crime rates.
3. TOUGH SENTENCES CAN DETER ADULT, BUT NOT JUVENILE, CRIME
SK/N04.05) John J. Dilulio [U. of Pennsylvania], SOJOURNERS MAGAZINE, February 2010, p. 12, GALE CENGAGE LEARNING, Expanded Academic ASAP. As we approach 2010, juvenile crime rates are at or below their pre-1985 levels--but why? A 2008 report by a National Academy of Sciences panel, which I briefly advised, suggests that while increased incarceration played a major role in the crime drop among adults, the impact of tougher sentencing on juvenile crime has been ambiguous or nonexistent. And studies of juvenile criminals serving time with adults suggest (surprise, surprise) that those youths become more likely to commit worse crimes in the future.
SK/N05. JUVENILE SYSTEM PROMOTES REHABILIGATION
1. GOAL OF JUVENILE SYSTEM IS REHABILITATION
SK/N05.01) Sean E. Smith [Thomas Jefferson School of Law], THOMAS JEFFERSON LAW REVIEW, Spring 2010, LEXISNEXIS Academic, p. 352. The ultimate goal of the juvenile justice system since its historical inception in 1899 has been to treat delinquents and enable them to become law-abiding citizens. Accomplishing this goal promotes the best interests of minors and public safety. The system's flexible and informal design is intended to allow judges to consider all of the factors that led to the crime in formulating the best treatment plan for the minor. The California Court of Appeal confirmed this analysis, stating that "in determining how best to rehabilitate a minor, the juvenile court should consider the broadest range of information."
SK/N05.02) Sean E. Smith [Thomas Jefferson School of Law], THOMAS JEFFERSON LAW REVIEW, Spring 2010, LEXISNEXIS Academic, p. 345. By 1925, every state except Maine and Wyoming adopted juvenile courts, and by 1945, every state had juvenile courts. Juvenile courts operate on the philosophy of parens patriae, which means that the state should not punish children for their criminal behavior but should try to help them control and prevent future criminality. The juvenile court system has an entirely different language to distinguish its philosophy from that of the adult criminal justice system. Juvenile offenders are called delinquents rather than criminals, wards rather than prisoners, and adjudicated rather than convicted. The juvenile justice system recognizes that labeling a minor as a criminal would be stigmatizing to the minor and hurt the minor's chances at reform. The delinquency label, on the other hand, is meant to tell the court the minor needs help.
SK/N05.03) Sean E. Smith [Thomas Jefferson School of Law], THOMAS JEFFERSON LAW REVIEW, Spring 2010, LEXISNEXIS Academic, pp. 345-346. In addition to the different language, the juvenile courts adopted different procedures to allow them to adequately attend to a minor's individual needs in procuring rehabilitation. The reformers intended to streamline the juvenile court process so that minors could undergo treatment and return to society as quickly and safely as possible. The reformers removed the rigidities and technicalities found in criminal law to make the process less adversarial and more informal. The Supreme Court affirmed the reformers' view that the juvenile courts function more efficiently in an informal setting without all of the due process rights afforded to criminal defendants. Judges use their wide discretion to assess the minor's individual needs in creating a treatment plan without being bound by rigid sentencing guidelines.
SK/N05.04) Andrea Knox [Ohio State U. College of Law], OHIO STATE LAW JOURNAL, 2009, LEXISNEXIS Academic, p. 1268. Historically, the juvenile court's role was to determine the conditions of the minor "physically, mentally, morally, and . . . to take him in charge, not so much to punish as to reform, not to degrade but to uplift, not to crush but to develop, not to make him a criminal but a worthy citizen." Still today, remaining in juvenile court yields benefits to the minor. While criminal law imposes punitive measures based on the nature of the sentence, a delinquency adjudication in juvenile court should be based on the juvenile's individual condition.
SK/N05.05) Andrea Knox [Ohio State U. College of Law], OHIO STATE LAW JOURNAL, 2009, LEXISNEXIS Academic, p. 1271. Most importantly, the distinction with the most severe consequences to the child is the range of sentences available in the juvenile and criminal court. Juvenile sentences are limited by statute in length and nature. A juvenile court is limited to sentencing a minor to serve time in a secure juvenile facility, to participate in some other type of rehabilitative program, or to receive services or uphold terms of a probation sentence, until the minor turns twenty-one. The statutory limitation on the adjudication given to the minor is a "juvenile life term," or commitment until age twenty-one. Because a minor can receive only a limited sentence in juvenile court, juveniles face much less daunting sentences in juvenile court than if tried and convicted for the same offense in criminal court. The limited nature of juvenile "sentences," more positively and less punitively referred to as adjudications, supports the rehabilitative goal of the juvenile justice system and recognizes the limited capacity and culpability of most juvenile offenders.
2. JUVENILE OFFENDERS ARE SEPARATED FROM ADULT CRIMINALS
SK/N05.06) Andrea Knox [Ohio State U. College of Law], OHIO STATE LAW JOURNAL, 2009, LEXISNEXIS Academic, pp. 1270-1271. Separate juvenile facilities are another significant benefit to juvenile adjudication. Juvenile facilities are exclusively for juveniles; children are isolated from violence and exposure in criminal correctional facilities. Although multiple studies have found some juvenile facilities in poor conditions, on the whole, juvenile facilities are far less traumatic and dangerous than adult facilities. The divergent goals of the juvenile system and the adult correctional system-rehabilitation in the juvenile system versus a stronger emphasis on punishment in the criminal system-make juvenile facilities a better place for an adjudicated minor. Children may gain access to mental health, educational, recreational, and other rehabilitative services in a juvenile facility or camp, while in adult prison many of these services may not be available at all.
3. REHABILITATION BEST SERVES INTEREST OF SOCIETY
SK/N05.07) Enrico Pagnanelli [Georgetown U. Law Center], AMERICAN CRIMINAL LAW REVIEW, Winter 2007, LEXISNEXIS Academic, p. 194. Programs that effectively rehabilitate within the juvenile court system are most capable of protecting the public and effectively, and fairly, implementing justice.
4. PUBLIC OPINION SUPPORTS REHABILITATION OF JUVENILES
SK/N05.08) Sharon Cohen, THE RECORD (Bergen County, NJ), December 2, 2007, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. And a national poll, commissioned by the foundation and the Center for Children's Law and Policy and set for release at the same time, also found widespread public support for rehabilitating teens rather than locking them up.
SK/N06. JUVENILE BRAIN IS VERY DIFFERENT FROM ADULT BRAIN
1. JUVENILE CRIME IS VERY DIFFERENT FROM ADULT CRIME
SK/N06.01) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 216. Statistics indicate that most adult crimes are committed for financial reasons, whereas most juvenile crimes are committed as a result of emotional damage, peer pressure, or poor decision making due to youthful impulsiveness. The divergence in motivation for criminal acts between adults and adolescents further backs up the need for corresponding different treatment. The deficiencies that motivate juvenile crime are usually things that are temporary and treatable. The intervention should be seen as a chance to rehabilitate troubled youths so that they are less likely to re-offend in the future, rather than to lock them up and subject them to the horrors of adult prisons, where their chances of a successful post-incarceration life decrease exponentially.
SK/N06.02) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 222. The worst possible reaction to juvenile crime is to think of the juvenile offender in the same way as an adult criminal. Youths are developmentally different from adults in a number of critical ways which in turn affects how accountable they should be held for their actions. Sending record numbers of juvenile offenders to adult prisons may seem like a way to make society safer, but that strategy is short-sighted and ends up making society less safe when the juvenile is released from prison as a hardened criminal and is more likely to become a repeat offender.
2. STUDIES SHOW JUVENILE BRAIN STILL UNDER DEVELOPMENT
SK/N06.03) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, pp. 733-734. In sparing children the death penalty, the Supreme Court in Roper relied on scientific evidence supplied by the American Medical Association (AMA) and the American Psychiatric Association (APA) that showed immature brain development, and the resulting lowered inhibition, in adolescents. The AMA brief also said that adolescents focus on the "here and now," without consideration of future effects. Such scientific evidence guided the majority's opinion by showing that children under 18 are not yet mature, and have not developed a sense of responsibility. The adolescent brain is a "site still under construction."
SK/N06.04) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. Laurence Steinberg, a Temple University psychology professor who has been studying adolescent brain and behavioral development for 35 years, likens the teenage brain to a car with a powerful gas pedal and weak brakes. While the gas pedal responsible for things like emotional arousal and susceptibility to peer pressure is fully developed, the brakes that permit long-term thinking and resistance to peer pressure need work. Steinberg says the latest research in developmental psychology confirms and strengthens the conclusion that juveniles as a group differ from adults in the salient ways the court identified in Roper.
3. JUVENILES ARE IMPULSIVE AND RISK-TAKERS
SK/N06.05) Barry C. Feld [Professor of Law, U. of Minnesota], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 34. "As any parent knows," kids do stupid, dangerous, and destructive things. 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 adults. Their propensity to take risks is reflected in higher incidence of accidents, suicides, homicides, unsafe sexual practices, and the like.
SK/N06.06) Barry C. Feld [Professor of Law, U. of Minnesota], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, pp. 34-35. To calculate risks, a person has to identify potential positive and negative outcomes, estimate their likelihood, and then apply value preferences to optimize outcomes. To a greater extent than adults, adolescents underestimate the amount and likelihood of risks, employ a shorter timeframe in their calculus, and focus on potential gains rather than losses. Juveniles fifteen years of age and younger act much more impulsively than do older adolescents, but even sixteen-and seventeen-year-old youths fail to exhibit adult levels of self-control.
4. IMPULSIVENESS EXPLAINS FAILURE OF PUNISHMENT TO DETER
SK/N06.07) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, pp. 1179-1180. Lawmakers intended juvenile transfer to have a deterrent effect on youths who learned of their peers serving time in adult prisons. This goal directly contradicts the literature on child and adolescent development. Developmental psychology research shows minors to be "more impulsive, to have less capacity for self-control, and to be more inclined to focus on immediate rather than long-term consequences of their choices." The American justice system often considers the amount of control a defendant had over his or her actions when assigning criminal responsibility. Adolescent traits such as impulsivity and susceptibility to peer pressure suggest that juvenile offenders have a diminished capacity to understand and control their actions.
SK/N06.08) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, p. 1180. Delinquent behavior stemming from impulsive acts will not cease due to the availability of harsher penalties. A juvenile on the cusp of committing a crime will not pause to consider the possibility that he or she may serve an adult prison sentence as a result of his or her behavior. Therefore, juvenile transfer laws are ineffective deterrent measures.
SK/N06.09) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. Justice Kennedy, who also wrote the majority opinion in Graham, said no recent data provided reason to reconsider the Roper decision and its observations about juveniles. If anything, he said, the evidence has become stronger and more conclusive in the five years since. Scientists say research demonstrates what every parent of a teenager probably knows instinctively: That even though adolescents may be capable of thinking like adults, they are mentally and emotionally still children. While an individual's cognitive abilities (thinking, reasoning) reach adult levels around the age of 16, studies show that psychosocial capabilities (impulse control, judgment, future orientation and resistance to peer pressure) continue to develop well into early adulthood. Which answers the question so many parents have undoubtedly asked their teenage sons and daughters: How could somebody so smart do something so dumb?
5. THIS IS ESPECIALLY TRUE FOR VIOLENT CRIME
SK/N06.10) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, pp. 734-735. Violent crimes like murder or assault, for which adolescents are imprisoned up to life, are often irrational and impulsive, clearly indicative of a lack of control. Further, the frontal lobe, which is triggered in adults but not in youth, accounts for the ability to judge future consequences. So not only is the irrational violence itself attributable to an immature brain, but the child's inability to fear the consequences is also the result of the natural functioning of the adolescent brain. This explains why harsh punishment doled out by adult courts does nothing to deter teenagers from committing violent crimes.
6. NO SCIENTIST DISPUTES BRAIN DEVELOPMENT STUDIES VALIDITY
SK/N06.11) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. Steinberg [Temple University psychology professor], a leading researcher in the field, says he knows of no serious debate over the merits of the science. While there will always be those who say more research is needed, he says he knows of no studies contradicting all the neurological and behavioral research that shows the brain is still maturing during adolescence, and that the maturation process continues well into adulthood.
7. KNOWLEDGE OF RIGHT AND WRONG IS IRRELEVANT
SK/N06.12) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, p. 735. In applying blame, a key distinction lies in the fact that it is not so much that adolescents cannot tell right from wrong as that there are deficiencies in how they think. Most "get tough" advocates rely on the argument that teenagers know right from wrong -- but we are getting tough on a class who is incapable of reasoning as an adult. A study involving 1,000 adults and adolescents found that individuals do not reach "psychosocial" maturity until age 19, which accounts for a teenager's inability to control aggressive impulses and his inability to see the big picture. As a class, adolescents are more reckless, sensation-seeking, and risk-taking than adults -- they undervalue the risks and overestimate the benefits.
8. SUPREME COURT ACCEPTS DIMINISHED JUVENILE CULPABILITY
SK/N06.13) Enrico Pagnanelli [Georgetown U. Law Center], AMERICAN CRIMINAL LAW REVIEW, Winter 2007, LEXISNEXIS Academic, p. 194. The treatment of juveniles as adults has proven to be an ineffective means of punishing juvenile offenders and protecting society. Roper has signaled that the Supreme Court recognizes the diminished culpability of juveniles and believes that they are not deserving of the same punishment as adults. This recognition should transform juvenile jurisprudence and policymaking for violent offenders and allow the absolute failure of juvenile transfer in achieving objectives to be scrutinized for review and repair.
9. MANY JUVENILES AREN’T COMPETENT TO STAND TRIAL AS ADULTS
SK/N06.14) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, pp. 735-736. In assessing whether children are competent to stand trial as adults, the well-known MacArthur Juvenile Adjudicative Competence Study found that children aged 11 to 13 are more than three times as likely as young adults to be "seriously impaired" in abilities related to competence. Those aged 14 to 15 are more than twice as likely to be seriously impaired. All children 15 or younger are less likely than adults to recognize the risks inherent in different choices, and less likely to think about long-term consequences, such as confessing as opposed to remaining silent.
SK/N06.15) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, p. 736. The MacArthur Study concluded that, compared to adults, the great proportion of children 15 and younger are not competent to stand trial in a criminal court.
10. ONLY U.S. AND SOMALIA FAIL TO PROTECT JUVENILE OFFENDERS
SK/N06.16) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, pp. 736-737. The rest of the world seems to recognize that adolescent brains are not as cognitively developed as adult brains, as reflected in the U.N. Convention on the Rights of the Child. Article 40 of the Convention calls for the establishment of a minimum age "below which children shall be presumed not to have the capacity to infringe the penal law." Prior to the Supreme Court's decision in Roper, we were the only country in the world that practiced capital punishment against children. We remain the only country in the world which fails to afford children some chance of redemption. All of the world's nations, except the United States and Somalia, have recognized children to be a protected class who have not developed the mental capacity to realize the consequences of their actions.
SK/N07. TRANSFER TO ADULT COURT IS A FLAWED SYSTEM
1. DECISIONS OF WHO TO TRANSFER ARE HAPHAZARD
SK/N07.01) Edward P. Mulvey [Professor of Psychiatry, U. of Pittsburgh] & Anne-Marie R. Iselin [U. of Pittsburgh School of Medicine], THE FUTURE OF CHILDREN, Fall 2008, p. 35, GALE CENGAGE LEARNING, Expanded Academic ASAP. During the course of juvenile justice processing, professionals still make a series of judgments about whether a particular adolescent is likely to harm someone in the community (risk of future violence or crime), to benefit from certain interventions (amenability to treatment), or both. In today's overburdened system, these judgments are often made rather haphazardly. To even a casual observer, it seems that, especially given recent advances in technology and the decision-making sciences, the juvenile justice system should approach such judgments more systematically. Yet the system has been slow to adopt more structured methods for assessing risk and amenability to treatment.
SK/N07.02) Edward P. Mulvey [Professor of Psychiatry, U. of Pittsburgh] & Anne-Marie R. Iselin [U. of Pittsburgh School of Medicine], THE FUTURE OF CHILDREN, Fall 2008, p. 35, GALE CENGAGE LEARNING, Expanded Academic ASAP. Although various forms of "structured" decision-making instruments, such as rating scales and decision trees, are available and are used widely in such fields as medicine or adult corrections, juvenile justice professionals today make limited use of these decision-making tools to assess risk for future offending or amenability to treatment, although they are frequently relevant to legal decisions and have a direct bearing on individualized justice. Instead, at successive points along the path of juvenile justice processing, professionals make decisions based mainly on their intuition about whether the adolescent presents a significant likelihood of future harm to the community or whether he would make good use of available services, or both. It is the exception, rather than the rule, to consider a consistent set of carefully assessed, empirically verified data.
2. COSTS OF MANDATORY TRANSFERS OUTWEIGH BENEFITS
SK/N07.03) Martin Guevara Urbina [Associate Professor of Criminal Justice, Sul Ross State U.-Rio Grande College] & William Sakomoto White, SOCIAL JUSTICE, Spring 2009, p. 122, GALE CENGAGE LEARNING, Expanded Academic ASAP. For instance, a study of the effects of Illinois and New York state legislation requiring the transfer of juveniles to adult court for specific offenses reported that "the costs, both financial and social, of mandatory transfer far outstrip whatever potential benefits there arc" (Reed et al., 1983: 32). More recent data also indicate that newly created waiver mechanisms have accomplished few of the goals of transfer advocates, and instead lead to serious unintended consequences (see Howell, 1996).
SK/N08. TRANSFER TO ADULT COURT INCREASES RECIDIVISM
1. STUDIES CONCLUSIVELY PROVE TRANSFERS INCREASE RECIDIVISM
SK/N08.01) Jeffrey J. Shook [Asst. Professor of Law, U. of Pittsburgh] & Rosemary C. Sarri [Professor Emeritus of Social Work, U. of Michigan], THE WAYNE LAW REVIEW, Winter 2008, LEXISNEXIS Academic, p. 1734. Studies comparing the recidivism of youth exiting these two systems demonstrate one way that these different experiences may be manifested. These studies find that youth transferred to the criminal justice system are more likely to recidivate than youth retained in the juvenile system.
SK/N08.02) Laurence Steinberg [Professor of Psychology, Temple U.], THE FUTURE OF CHILDREN, Fall 2008, GALE CENGAGE LEARNING, Expanded Academic ASAP. After reviewing the history and extent of adult prosecution of juveniles, Fagan then turns to the main policy question: how effective are transfer laws? According to his review, the evidence is quite clear. Juvenile offending is not lower in states where it is relatively more common to try adolescents as adults, and juveniles who have been tried as adults are no less likely to re-offend than their counterparts who have been tried as juveniles--findings that call into question the wisdom of transferring juveniles to adult court as a means of crime control. Indeed, as Fagan notes, the few empirical studies that have compared juveniles released from adult facilities with matched samples of those released from juvenile facilities find that the former are more likely to re-offend than the latter.
SK/N08.03) Benjamin Steiner [Division of Criminal Justice, U. of Cincinnati] & Emily Wright, JOURNAL OF CRIMINAL LAW & CRIMINOLOGY, Summer 2006, LEXISNEXIS Academic, pp. 1457-1458. In an effort to assess the specific deterrent effect of waiver laws, scholars have also compared the difference in recidivism rates between waived youth and similarly situated juvenile offenders. Contradicting the expectations of deterrence advocates, recidivism rates have generally been lower for youth retained in juvenile court when compared to those transferred to criminal court. Transferred juveniles have also been found to re-offend sooner and more often than those youth processed in the juvenile system.
SK/N08.04) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, p. 738. Serious juvenile offenders exposed the criminal justice system recidivate 150% more often than those in the juvenile justice system, for seven different types of crime. This means that as a result of children being punished with adults, even more innocent victims are hurt when these juveniles are released.
SK/N08.05) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 212. Juveniles who have been transferred into the criminal system have higher rates of recidivism, are rearrested more quickly, and commit more serious crimes once they are released than do those adjudicated in the juvenile courts. The system's failure for juveniles translates to a failure for society when non-rehabilitated former juvenile offenders are eventually released from prison and re-offend. Society cannot both lock up thousands of youths with adult criminals and not expect crime rates to increase as waves of these now-adult, non-rehabilitated offenders get back on the street. Studies show that they will resume their criminal behavior, and this time the stakes will be higher because it is an adult committing the crime. One commentator has summed up the result of these reactionary waiver schemes as buying justice on credit: "Removal of the juvenile from society without rehabilitation only postpones the debt, with exorbitant interest due when the non-rehabilitated juvenile inevitably returns to society and recidivates."
SK/N08.06) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, p. 1183. Unlike juvenile court records, which are sealed, criminal convictions are a matter of public record and youth must report them on all academic and employment applications. The more difficult it is for a juvenile to find a stable job, the more likely he will recidivate. Additionally, individuals with criminal records lose many civil liberties such as the right to vote, hold office, join the military, or even to sit on a jury. Given these harsh restrictions and stigmatization, it is not surprising that transferred offenders are more likely to reoffend more quickly, frequently, and severely than their peers held in juvenile court. This higher rate of recidivism suggests that transferring juveniles may increase juvenile crime, which is directly opposite to the effect that policymakers intended.
SK/N08.07) Sean E. Smith [Thomas Jefferson School of Law], THOMAS JEFFERSON LAW REVIEW, Spring 2010, LEXISNEXIS Academic, pp. 342-343. Although initial juvenile offenses are relatively low, recidivism is extremely high among minors punished in California's juvenile and adult court systems. Many theorists believe the high recidivism rate is related to the tough sanctions imposed on juvenile delinquents in California.
2. INCREASED RECIDIVISM IS TRUE FOR VIOLENT JUVENILE CRIME
SK/N08.08) Sarah Hammond, STATE LEGISLATURES, April 2008, p. 31, GALE CENGAGE LEARNING, Expanded Academic ASAP. A Center for Disease Control Prevention Task Force found that juveniles who enter the adult justice system, on average, commit more violent crimes following release than juveniles retained in the juvenile justice system. Researchers at the John D. and Catherine T. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice found that adolescents processed in New York adult courts, which they enter at age 16, were more likely to be re-arrested more often and more quickly for serious offenses than those in New Jersey, where youth are kept out of adult court until age 18. And the Wisconsin Legislative Audit Bureau reported that young criminals coming out of Wisconsin's prisons are even more likely to re-offend and end up back behind bars than their adult counterparts.
SK/N08.09) Peter Katel, CQ RESEARCHER, November 7, 2008, p. 918. 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.
3. INCREASED RECIDIVISM PROVES FAILURE OF DETERRENCE
SK/N08.10) Jeffery A. Fagan, DAEDALUS, Summer 2010, p. 43, GALE CENGAGE LEARNING, Expanded Academic ASAP. A robust body of research shows that recidivism rates are in fact higher for youths sentenced as adults, after controlling for relevant offender and offense characteristics. There appears to be no marginal deterrent effect from incarcerating minors as adults, which was a cornerstone of youth policy in the 1990s.
SK/N08.11) Enrico Pagnanelli [Georgetown U. Law Center], AMERICAN CRIMINAL LAW REVIEW, Winter 2007, LEXISNEXIS Academic, p. 183. Studies show that transfer fails to deter violent juvenile offenders. In fact, various studies have indicated that transfer actually increases recidivism among these offenders. This increased recidivism manifests a failure to deter, a failure to rehabilitate, and most significantly, a failure to protect society.
SK/N08.12) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, p. 1181. The most recent psychological research shows that transfer laws do not even deter those juveniles who do serve criminal sentences. Criminal incarceration is the final blow in the "get tough" policy towards juvenile crime. As of 1998, forty-four states incarcerated juveniles in adult facilities, and only eighteen of these states housed the youth offenders in separate facilities. However, many studies show that imprisoning juvenile and adult offenders together leads to greater youth recidivism, thereby frustrating the original goal of public safety. This recidivism may be a result of procedural disenfranchisement, a lack of rehabilitative resources in prison, and victimization in prison.
SK/N09. ADULT PRISON FOR JUVENILES IS CRUEL PUNISHMENT
1. JUVENILES FACE HORRIFIC ABUSE IN PRISON
SK/N09.01) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, p. 1182. Once they arrive in prison, juvenile offenders face more aggravation. Paramount is a high level of victimization and psychological distress. Juveniles in adult facilities reported more weapons assaults, sexual violence, and physical altercations than their counterparts in juvenile detention centers. Juveniles live in constant fear of harm, causing many youths to report poor psychological health, including greater anxiety and depression.
SK/N09.02) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, pp. 738-739. A 1989 study compared the treatment of juveniles in adult prisons to juveniles in training schools. Sexual assaults were 500% more likely and beatings by staff 200% more likely in the adult prisons. Attacks with weapons were 50% more likely in adult prisons. The juveniles in adult prison were twice as likely to be attacked by other inmates or staff. By contrast, the training centers helped the children set goals and focused on improving family relationships. The centers provided more assistance with anger management, improving interpersonal relations, and preparing the children with job skills -- all of which impact the child's ability to re-integrate into society as a healthy adult.
SK/N09.03) Thomas J. Billiteri, CQ RESEARCHER, March 5, 2010, p. 197. Despite changes in some states, thousands of young delinquents (not status offenders) are incarcerated in adult jails, putting them at risk of physical and sexual assault, suicide and increased chances of being rearrested, according to the Campaign for Youth Justice, a Washington, D.C., advocacy group.
2. TREATMENT IS LACKING FOR JUVENILES IN ADULT PRISON
SK/N09.04) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, pp. 1182-1183. Unlike juvenile detention facilities, prisons have less, if any, treatment options, counseling services, or educational and professional opportunities. This presents a distinct problem for incarcerated youth, who will more than likely reenter society at some point and be expected to live as productive members of their communities. Rather than learning essential skills for life after prison, juvenile inmates reported learning new crime techniques and methods for evading capture.
SK/N09.05) Jeffery A. Fagan, DAEDALUS, Summer 2010, p. 43, GALE CENGAGE LEARNING, Expanded Academic ASAP. Only a few studies have compared the correctional experiences of youths in prisons and juvenile incarceration, but all agree that placing youths in prisons comes at a cost: they are less likely to receive education and other essential services, they are more likely to be victims of physical violence, and they manifest a variety of psychological symptoms.
3. ADULT IMPRISONMENT VIOLATES THE 8TH AMENDMENT
SK/N09.06) Amanda M. Kellar [Suffolk U. Law School], SUFFOLK UNIVERSITY LAW REVIEW, 2006, LEXISNEXIS Academic, p. 179. States violate the Eighth Amendment by incarcerating juveniles with adults. Society's evolving standards of decency demand either sight and sound separation of juveniles from adults or incarceration of juveniles in entirely separate facilities. The objective indicia of consensus demonstrate that society believes incarcerated juveniles should be separated from adults. Many states have enacted statutes requiring such separation, either in entirely separate facilities until the age of seventeen, or at minimum by way of sight and sound separation. The consequences juveniles face in adult prisons, especially the heightened violence, is disproportionate to the goals of retribution and deterrence. The United States Supreme Court has determined that juveniles are less blameworthy and not as easily deterred from committing crimes. Therefore, the goals of punishment are not being met and juveniles are facing severe, disproportionate punishment.
SK/N09.07) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 211. Studies on juveniles in the adult prison population are so appalling that they shock the conscience. These studies have shown that children locked up in adult prisons are eight times more likely to commit suicide (most within the first twenty-four hours of incarceration), five times more likely to be sexually assaulted, and twice as likely to be assaulted by prison staff than youth offenders housed in juvenile facilities. Even if a youth has committed a terrible crime, incarceration under these circumstances amounts to nothing less than cruel and unusual punishment.
SK/N10. ADULT COURT STIGMATIZES JUVENILES FOR LIFE
1. LACK OF CONFIDENTIALITY STIGMATIZES JUVENILES
SK/N10.01) Andrea Knox [Ohio State U. College of Law], OHIO STATE LAW JOURNAL, 2009, LEXISNEXIS Academic, p. 1270. Another distinction between juvenile proceedings and adult criminal proceedings is confidentiality. Juvenile proceedings are closed to the public, including the media, who generally do not publish the names and addresses of minors. Juvenile courts are known and valued for their privacy. Confidentiality is not typical of criminal proceedings, even when a juvenile is involved. Criminal cases are public and often well-publicized. Records of proceedings in juvenile court are sealed, but a criminal record is available to the public. The individual benefit and social value of keeping the damage of a public trial from coloring the juvenile's future is lost in an open and public criminal court.
SK/N10.02) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, pp. 211-212. Another significant result of transfer is that juvenile offenders are stigmatized as criminals. Unlike juvenile court adjudication, where records are kept private with the goal of treating a young offender and then releasing him with a clean slate to start his life as an adult, juveniles transferred to criminal court will have the burden of carrying that stigma with them for the rest of their lives. In addition to hurting their future career and social prospects, the attachment of this stigma at a young age can affect a juvenile's psyche; if he is labeled a criminal when he is fifteen, he will believe he is one and will act accordingly. In sum, the effects of injecting young people into the criminal justice system seem to foreclose any chance that the juvenile might have of turning his life around and becoming a responsible and law-abiding adult in the future.
2. STIGMATIZATION FOR LIFE IS UNJUST AND UNWISE
SK/N10.03) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. A group of former juvenile offenders who have since become productive, law-abiding adults, including former U.S. Sen. Alan Simpson of Wyoming, argued that it is "fundamentally inhumane" to give up on youthful offenders, as their own brushes with the law had shown. The brief said Simpson helped set fire to an abandoned building, fired a rifle at a road grader, and slugged a cop who tried to arrest him after a bar brawl.
SK/N11. TRANSFER TO ADULT COURT IS DISCRIMINATORY
1. MINORITY JUVENILES ARE GIVEN PUNISHMENT, NOT TREATMENT
SK/N11.01) Elizabeth Brown, SOCIAL JUSTICE, Spring 2009, p. 102, GALE CENGAGE LEARNING, Expanded Academic ASAP. The contemporary "disproportionate minority contact" maintained by the U.S. juvenile justice system shows that a two-track approach to youthful criminality has existed in many places for decades. Codifying in law a dual determination of juvenile culpability--one for those needing accountability, and another for those amenable to treatment- poses the danger of cementing in place an approach that has continuously adjudicated youth of color more harshly than their white counterparts (Bishop and Frazier, 1996; Feld, 1999; Kempf-Leonard et al., 1995).
2. THEY ARE DISPROPORTIONATELY TRANSFERRED TO ADULT COURT
SK/N11.02) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, pp. 1178-1179. A sociological study in 1996 estimated that 210,000 to 260,000 children under the age of eighteen are tried in criminal court every year as a result of the new transfer procedures. These numbers are staggering when viewed in comparison with the 12,600 transfers that occurred nationwide in 1978. Although the new methods for transfer send more juveniles to criminal court, studies suggest these adolescents are not the most serious offenders. Rather than transferring juveniles who committed violent crimes against persons, at least 40% of the waived cases were property crimes. In Florida, only 29% of delinquents transferred in the late 1970s committed crimes against another person. Current transfer statistics also show a secondary effect on race and gender. At present, "older, male, nonwhite, and poor juveniles from urban areas continue to represent the majority of waived adolescents." This statistic prompted many critics of transfer laws to question whether waiver is simply the latest form of racial profiling and discrimination.
SK/N11.03) Barry C. Feld [Professor of Law, U. of Minnesota], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, p. 15. For decades, studies have consistently reported racial disparities in waiver decisions and that recent "get tough" reforms have exacerbated racial disparities. 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.
SK/N12. ADULT COURT OFTEN GIVES MORE LENIENT SENTENCE
1. VIOLENT JUVENILES TREATED MORE LENIENTLY IN ADULT COURT
SK/N12.01) William Hannan [Notre Dame Law School], NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2008, LEXISNEXIS Academic, pp. 210-211. Research indicates that violent juveniles are treated more leniently in criminal court than they would have been in juvenile court. This is likely because judges who are used to seeing the records of hardened adult criminals will view juveniles as less harmful compared to the adults they usually see. In addition, some judges may be reluctant to send juveniles to adult prisons because they are afraid of what will probably happen to them there.
2. THEY OFTEN SERVE SHORTER TIME THAN IN JUVENILE COURT
SK/N12.02) Emily A. Polachek [William Mitchell College of Law], WILLIAM MITCHELL LAW REVIEW, 2009, LEXISNEXIS Academic, p. 1183. When the prisons become too crowded, as they are today, juvenile convicts are among the first released because they are considered less dangerous than the adults; therefore, these juveniles may actually serve shorter and less punitive sentences as a result of transfer.
3. JUVENILES OFTEN RECEIVE PROBATION OR NON-INCARCERATION
SK/N12.03) Martin Guevara Urbina [Associate Professor of Criminal Justice, Sul Ross State U.-Rio Grande College] & William Sakomoto White, SOCIAL JUSTICE, Spring 2009, p. 122, GALE CENGAGE LEARNING, Expanded Academic ASAP. Studies conducted in the late 1970s and early to mid-1980s found that the majority of juveniles sentenced in adult court received probation or some other alternative to incarceration (Bishop et al., 1989; Bortner, 1986; Fagan et al., 1987; Hamparian et al., 1982; Heuser, 1984).
4. JUVENILE SYSTEM OFTEN IMPOSES TOUGH SENTENCES
SK/N12.04) Andrea Knox [Ohio State U. College of Law], OHIO STATE LAW JOURNAL, 2009, LEXISNEXIS Academic, p. 1268. Following the rapid proliferation of juvenile justice systems, the juvenile courts developed separately from the criminal courts as a means by which children could be rehabilitated and protected from experienced criminals within criminal courts and adult corrections facilities. Despite this virtuous goal, the current reality is that juvenile courts have the statutory capacity to seriously curtail the freedom of minors. The punishments inflicted often make the system look more criminal and punitive than rehabilitative, straining the constitutional and practical limitations of the juvenile court in protecting children who have entered the legal system.
SK/N13. LIFE-WITHOUT-PAROLE IS UNJUSTIFIED FOR JUVENILES
1. LIFE-WITHOUT-PAROLE FOR JUVENILES IS CRUEL PUNISHMENT
SK/N13.01) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. In Graham, the court held 5-4 that life without parole for a juvenile offender convicted of a crime not involving murder violates the Eighth Amendment ban on cruel and unusual punishment. (Chief Justice John G. Roberts Jr. agreed only with the majority's holding that Terrance Jamar Graham's sentence was unconstitutional, not with its conclusion that all such sentences necessarily are.) The majority based its decision in part on the scientific research into adolescent brain development first cited by the court five years ago in Roper v. Simmons, when it struck down the death penalty for juvenile offenders on the same grounds. That evidence showed that adolescents, as a group, are more immature, more irresponsible, more susceptible to negative influences and outside pressures, and more capable of long-term change than are adults, which the court said made them categorically ineligible for the death penalty.
SK/N13.02) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. "These differences render suspect any conclusion that a juvenile falls among the worst offenders," for whom the death penalty is reserved, Justice Anthony M. Kennedy wrote for the 5-4 majority in Roper. "The susceptibility of juveniles to immature and irresponsible behavior means 'their irresponsible conduct is not as morally reprehensible as that of an adult.'"
2. LIFE-WITHOUT-PAROLE HAS NOT ADDITIVE DETERRENT VALUE
SK/N13.03) Paul Pinkham, THE FLORIDA TIMES UNION, November 10, 2009, p. A1, GALE CENGAGE LEARNING, Custom Newspapers. The swing vote is still likely to be Justice Anthony Kennedy, who wrote the 2005 opinion. He had tough questions for both sides. He asked Gowdy how to account for a juvenile who goes on a multi-jurisdictional crime spree and is sentenced by different judges. But Kennedy also told Makar he doesn't believe there is much deterrent difference between life without parole and life with parole. "Since it's not deterrence, what are the state's interests in keeping the defendant in prison for the rest of his life if he is rehabilitated?" Kennedy wondered.
3. U.S. STANDS ALONE IN THE WORLD IN USING THIS PUNISHMENT
SK/N13.04) Mark Hansen, ABA JOURNAL, July 2010, p. 50, GALE CENGAGE LEARNING, Expanded Academic ASAP. The majority also cited the relative severity of a life sentence for a juvenile offender in comparison to an adult offender and questioned the penological purposes of such a sentence. It noted what it said was a global consensus against life sentences for juvenile offenders under any circumstances, citing a 2007 study that showed the U.S. was the only country in the world that imposes life-without-parole sentences on juvenile nonhomicide offenders. "A state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime," Kennedy wrote for the majority, which included Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. "What the state must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."
SK/N13.05) Cynthia L. Schirmer [Michigan State U. Law School], MICHIGAN STATE JOURNAL OF INTERNATIONAL LAW, 2008, LEXISNEXIS Academic, p. 743. The United States should ratify the U.N. Convention on the Rights of the Child, and thereby be held accountable to the world for the way we sentence and imprison children. We remain the only country to sentence children to life without parole. Our treatment of children in our criminal justice system is, according to many, cruel. And our system of imprisoning children with adults produces more hardened adult criminals, which in turn result in more victims.
................
................
In order to avoid copyright disputes, this page is only a partial summary.
To fulfill the demand for quickly locating and searching documents.
It is intelligent file search solution for home and business.
Related searches
- buster douglas why video
- douglas production function
- douglas elementary school columbus ohio
- douglas county credit union
- douglas booth romeo and juliet
- coffee regional medical center douglas ga
- douglas county community service
- douglas parent portal infinite campus
- cobb douglas production function graph
- cobb douglas formula
- cobb douglas function examples
- cobb douglas returns to scale