The legal response to juvenile crime is undergoing revolutionary change, and its ultimate shape is uncertain. The traditional juvenile court, grounded in optimism about the potential for rehabilitation of young offenders, has long been the target of criticism, and even its defenders have been forced to acknowledge that it has failed to meet its objectives.(1) Beginning in the late 1960s, when the Supreme Court introduced procedural regularity to delinquency proceedings in In re Gault,(2) courts and legislatures began to slowly chip away at the foundations of the juvenile justice system.(3) Recent developments have accelerated and intensified that process, as policy-makers at both the state and federal level respond to public fear and anger at what is perceived to be an epidemic of youth violence, including an alarming increase in juvenile homicide.(4) Increasingly, critics of the traditional juvenile justice system argue that young offenders should be subject to the same punishment as adults for the harms they cause.(5) The next step, which many are quite ready to take, is to abolish the separate juvenile justice system.
One way to think about the evolution of legal policies responding to youthful crime is in terms of the empirical account of adolescence that is expressed through these policies. From this perspective, the traditional (pre-Gault) juvenile court was shaped in important ways by a conception of errant youth as childlike, psychologically troubled, and malleable.(6) On this view, the job of the court was not to punish, but to rehabilitate and protect its charges. With the reform movement of the 1970s and 1980s, a less idealized view of adolescence emerged, together with a growing skepticism about the potential for rehabilitation.(7) Immature youth were seen as less culpable than adults, but not as blameless children. Lacking experience and judgment, young offenders needed lessons in accountability. A perusal of the current landscape of juvenile justice reform suggests a view of delinquent youth as appropriately subject to adult punishment and procedures and thus as indistinguishable in any important way from their adult counterparts.(8)
Our aim in this essay is to examine these changing accounts through a developmental lens, with a purpose of bringing into the policy debate on juvenile justice reform the insights of development psychology. This perspective is useful in providing a scientific measure of the empirical assumptions, intuitions, and predictions about adolescence that have always played a large role in policy formation in this context. The framework challenges two assumptions underlying the contemporary punitivist reforms. The first is what might be called the "competence assumption:" that no important differences distinguish adolescents and adults charged with crimes. Modern developmental psychology provides substantial, if indirect, evidence that adolescent choices about involvement in crime and their decisions as defendants in the legal process reflect cognitive and psychosocial immaturity. This evidence challenges contemporary juvenile justice policies which discount the importance of conventional notions of criminal responsibility and constitutional requirements for fair proceedings (neither of which the critics challenge directly).
The second premise implicit in the recent reforms might be labeled the "utilitarian assumption." It qualifies the competence assumption in holding that, even if developmental differences do distinguish adolescent and adult offenders, the enormous social cost inflicted by young criminals requires that those differences be ignored in formulating a legal response to youth crime. This assumption is challenged by evidence derived from taxonomy of adolescent delinquent behavior,(9) which explains much about the nature of adolescent criminal conduct and clarifies the importance of differentiating among young offenders. The modern punitivist reforms tend to treat adolescent offenders as though most are young career criminals--a premise that is true of only a small group of offenders whose delinquency in adolescence is part of a persistent pattern of antisocial behavior, often beginning in early childhood. The criminal activity of most adolescents, in contrast, reflects a relatively typical inclination to engage in antisocial behavior during this developmental stage--a tendency that desists with maturity.(10) Thus, policies that focus solely on the harm caused by youthful offenders may not be the optimal means to achieve the instrumentalist goals of their proponents. These policies fail to calculate the long-term social costs of categorical punishment, particularly the costs incurred by diminishing the prospects for productive adulthood of those offenders whose delinquent behavior reflects transient developmental influences.
In combination, the developmental lessons produce a counterintuitive insight about the relationship among immaturity, culpability and criminal persistence, that has not yet been recognized in the formulation of juvenile justice policy. Youths who offend at a younger age (and who are thus less mature and less culpable) may be more likely to become adult career criminals than teens who first initiate even serious antisocial behavior in mid-adolescence or later. This observation poses a formidable challenge to the development of fair and effective policies responding to youth crime. It suggests that juvenile justice policy must attend to patterns of delinquent behavior and not simply to the severity of the offense, and it contributes to our conclusion that a developmental model of juvenile justice should incorporate both rehabilitative and retributive dimensions.
The following roadmap may be helpful. In Part I, we will briefly sketch the changing conceptions of adolescence that have been reflected in the evolution of juvenile justice policy over the past century. In Part II, we present a developmental framework. First, we describe the role of antisocial conduct in adolescent development, and sketch the taxonomy, which includes two rough categories of youthful criminal behavior: "adolescent-limited" and "life-course-persistent."(11) We then offer a positive account of developmental factors that may influence decision-making in ways that distinguish adolescents from adults.(12) Finally, we apply this framework, examining the impact of developmental factors on decisions to engage in criminal conduct and on decisions in the criminal process. In Part III, we explore the possible implications of developmental knowledge for criminal blameworthiness, and conclude that developmental psychology evidence supports a presumption of youthful diminished responsibility for younger and mid-adolescents. We then examine through a developmental lens the utilitarian argument that societal protection necessitates severe penalties for youthful offenders. This perspective clarifies that punitive policies may poorly serve the efficiency goals of their supporters. In Part IV, we examine the lessons of the developmental perspective for juvenile justice policy and suggest some directions for policy that is formulated in a developmental framework.
CHANGING PERSPECTIVES ON ADOLESCENCE IN JUVENILE JUSTICE REFORM
In this Part we describe accounts of adolescence as reflected in juvenile justice policy during three periods in the last century. Each period, in its way, was one of reform--a time in which existing legal policy toward youth crime was challenged by a new conception of adolescence and adolescent crime. The first was the period of Progressive reform early in the century; the second was the post-Gault period of the 1970s and 1980s; and the third is the contemporary period.
THE TRADITIONAL COURT
The creation at the turn of the century of a separate system of juvenile justice, committed to rehabilitation of young offenders, was a product of the social reform movement of that period.(13) It also reflected the late 19th century understanding of the nature of crime and a new recognition of psychological differences between youths and adults, which was emerging from the "new" science of psychology.(14)
The focus on rehabilitation came in part out of a conception of criminal conduct as a symptom of an underlying condition that required treatment, rather than as bad conduct warranting punishment.(15) This approach to crime influenced towards the juvenile offender should the sentencing reform of the late 19th century, generating indeterminate sentencing policies that dominated adult criminal corrections for more than a century.(16) Juvenile offenders, because they were young and malleable, were believed to be ideally suited to a regime grounded in rehabilitation.(17) In juveniles, the "condition" that required treatment was caused by poor parental guidance, care and supervision as well as social harms associated with poverty.(18)
Although the Progressive conception of youth included the modem understanding of adolescence as a separate developmental stage, and of adolescents as "not fully formed" persons,(19) the Progressive reformers tended to describe young offenders in more childlike terms.(20) As Judge Ben Lindsey, a prominent early reformer, put it, the criminal prosecution of youth was an "outrage against childhood."(21) Lindsey argued that "our laws against crime were as inapplicable to children as they would be to idiots."(22) In part, this characterization may have reflected a tendency to exaggerate the differences between adult and youthful offenders, by advocates seeking to underscore the appropriateness of a more lenient legal response to youth crime. Moreover, the reformers, in fact, may have been imagining younger offenders. The jurisdiction of juvenile courts in the early years ended at age fourteen or sixteen, and the real victory for reformers was that children between the ages of seven and fourteen were no longer tried as...