Social Welfare and Fairness in Juvenile Crime Regulation

• Author: Elizabeth S. Scott - Laurence Steinberg
• Position: Harold R. Medina Professor of Law at Columbia University. - Laurence Steinberg is the Laura Carnell Distinguished University Professor at Temple University.
• Pages: 35-97

Social Welfare and Fairness in Juvenile Crime

Regulation

Elizabeth S. Scott*

Laurence Steinberg**

The question of how lawmakers should respond to

developmental differences between adolescents and adults in

formulating juvenile crime policy has been the subject of debate

for a generation. A theme of the punitive law reforms that

dismantled the traditional juvenile justice system in the 1980s and

1990s was that adolescents were not different from adults in any

way that was relevant to criminal punishment—or at least that any

differences were trumped by the demands of public safety.

1

But

this view has been challenged in recent years; scholars and courts

have recognized that adolescents, due to their developmental

immaturity, are less culpable than adults and that the principle of

proportionality requires that teens be punished less severely for

their criminal offenses.

2

Moreover, some scholars have invoked

developmental research to challenge the core assumption

underlying the punitive law reforms that harsh sanctions promote

Copyright 2010, by ELIZABETH S. SCOTT & LAURENCE STEINBERG.

* Elizabeth Scott is the Harold R. Medina Professor of Law at Columbia

University.

** Laurence Steinberg is the Laura Carnell Di stinguished University

Professor at Temple University.

This essay i s based in part on ELIZABETH SCO TT & LAURENCE STEINBERG,

RETHINKING JUVENILE JUSTICE (2008).

1

. Matthew Thomas Wagman, Note, Innocence Lost: In the Wake of

Green, The Trend I s Clear—If You Are Old Enough to Do the Crime, You Are

Old Enough to Do the Time, 49 CATH. U. L. REV. 643 (2000).

2

. See ELIZABETH SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE

JUSTICE 118–48 (2008). The Supreme Court in Roper v. Simmons announced

that to impose the death penalty on a juvenile was cruel and unusual punishment

in violation of the Eighth Amendment of the Constitution; although the Court

offered several rationales for its conclusion, the heart of the opinion was a

proportionality analysis that emphasized the developmental immaturity of

adolescents. 543 U.S. 551, 568–76 (2005) (basing this analysis on La urence

Steinberg & E lizabeth Scott, Less Guilty by Reason of Adolescence:

Developmental Immaturity, Diminished Responsibility, and the Juvenile Death

Penalty, 58 AM. PSYCHOLOGIST 1009 (2003)). In 2010 the Court followed Roper

in holding that sentencing a juvenile to life without parole for a non -homicide

offense violates the Eighth Amendment. Graham v. Florida, 130 S. Ct. 2011

(2010).

36 LOUISIANA LAW REVIEW [Vol. 71

public safety and reduce the social cost of juvenile crime.

3

And

there is evidence that lawmakers are listening.

4

In this Article, we argue that a developmental model of

juvenile crime regulation grounded in scientific knowledge about

adolescence is both fairer to young offenders and more likely to

promote social welfare than a regime that fails to attend to

developmental research. We challenge the punitive reformers who

have presumed that public safety is enhanced and social welfare

promoted if serious juvenile offenders are punished as adults, and

who have been unconcerned about whether their approach is

compatible with principles of fair punishment. We focus here

primarily on the social welfare argument for a separate and more

lenient juvenile justice system grounded in a developmental

framework. First, the argument for mitigation on the grounds of

developmental immaturity is more familiar, and although it

supports less punishment, it provides no strong basis for a separate

justice system.

5

Moreover, lawmakers and the public care about

accountability, but they may care even more about public safety;

fears about the threat of young ―superpredators‖ propelled the

transformation of juvenile crime policy that took place in the late

twentieth century.

6

Thus, a regime that deals with juveniles more

leniently than adults (because they deserve less punishment) is

likely to fail in the political arena if public safety is imperiled. In

short, the viability of the developmental model depends on

evidence that the punitive response of the past generation is not

3

. See SCOTT & STEINBERG, supra note 2, at 181–222. A few sc holars have

gone a step further, arguing that public safety should be the only goal of juvenile

crime regulation. See Christopher Slobogin & Mark R. Fondacaro, Juvenile

Justice: The F ourth Option, 95 IOWA L. REV. 1 (2009).

4

. In the past few years, po licymakers have retreated somewhat fro m the

punitive reforms of the 19 90s, often pointing to rese arch on j uveniles‘

developmental immaturity. See, e.g., Editorial, Two Words: Wasteful a nd

Ineffective, N.Y. TIMES, Oct. 10, 2010, at A22 (describing New York ‘s closure

of institutional juvenile justice facilities that contribute to reo ffending, and

arguing for expedition of more closings).

5

. Barry Feld has argued for a unitary justice system in which juveniles

receive a ―youth discount‖ and rec eive shorter sentences. BARRY C. FELD, BAD

KIDS: RACE AND THE TRANSFORMATION OF THE JUVENILE COURT (1999); see

also Barry C. Feld, The Tr ansformation of the Juvenile Court, 75 MINN. L. REV.

691 (1991).

6

. This term was coined by University of Pennsylvania criminologist J ohn

DiIulio, who in 1995 predicted that the new century would bring a juvenile

crime wave far worse than the 1990s. John J. DiIulio, Jr., The Coming of the

Super-Predators, WKLY. STANDARD, Nov. 27, 1995, at 23. DiIulio later

expressed regret for the hyper bole and acknowledged that the prediction had not

come to pass. Elizabeth Becker, As Ex-Theorist on Young “Superpredators,”

Bush Aide Has Regrets, N.Y. TIMES, Feb. 9, 2001, at A19.

2010] SOCIAL WELFARE AND FAIRNESS 37

only inconsistent with basic principles of fairness, but also that it

has failed to minimize the social cost of juvenile crime, and that

regulation based on social science research is more likely to attain

this goal.

The recent punitive reforms embodied a view that society‘s

interests are promoted by tough incarceration policies under which

more youths are dealt with in the adult system and offenders in the

juvenile system are incarcerated for longer periods of time.

7

The

claim that these measures will reduce juvenile crime is critical to

the social welfare justification for more punitive sanctions, but it

turns out to be hard to evaluate. Juvenile crime indeed has declined

since its peak in the early 1990s, but the causes of the decline are

complex.

8

As we will see, studies that have examined the impact of

the adoption of punitive policies on youth crime rates yield mixed

results, offering little support for the claim that the declining crime

rates are largely due to the enactment of harsher laws.

9

Evaluating the impact of the punitive reforms also requires

consideration of factors other than crime rates. First, the economic

costs of tough laws are substantial, as legislatures and government

agencies are beginning to recognize.

10

Resources spent on building

and staffing correctional facilities needed to incarcerate more

juveniles for longer periods are not available for other social uses.

Even assuming that tough sanctions can reduce juvenile crime, at

some point the additional dollars expended may not offer enough

7

. The views of Alfred Regnery, head of the Office of Juvenile Justice and

Delinquency Prevention under President Reagan, are typical of critics of the

traditional juvenile court who endorsed tough sanctions for young offenders.

―[T]here is no reason that society should be more lenie nt with a 16-year-old

offender than with a 30-year-old offender.‖ Alfred S. Regnery, Getting Away

with Murder : Why th e Juvenile Justice System Needs an Over haul, 34 POL‘Y

REV. 65, 68 (1985).

8

. See infra Part II.B. For example, many states enacted punitive reforms

after crime rates began to fall, suggesting that other factors have played a role. The

adoption of Proposition 21 in California is a good example. In 2000, when the

referendum making transfer easier passed, juvenile crime rates had been declining

for five or six years. See SCOTT & STEINBERG, supra note 2, at 102–17.

9

. See in fra Part II.C–D.

10

. This has become a key issue in adult sentencing as well. See Rachel E.

Barkow, F ederalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276

(2005). Barkow argues that cost considerations can function as an important

constraint on punitive sentencing policies and points to state legislatures that

have retreated from harsh sentencing refor ms in the face of rising costs. She

points out that in the 1990s, state governments d oubled the amount spent on

corrections due to get-tough policies. Id. at 1287. For a discussion of the rising

costs of juvenile crime, see infra P art I.B.