Introducation 1 I. The Modern Juvenile Justice System 7 A. Over-Criminalizing Youth Behavior 8 B. Dispensing (In)Justice 11 1. General Juvenile Courts 11 2. Adult Criminal Courts 17 3. Specialty Youth Courts 19 C. Disrupting Positive Youth Development 23 II. Decriminalization as Juvenile Justice Reform 26 A. Decriminalization Basics 26 B. Recent Examples of Juvenile Decriminalization 27 1. School Absence 28 2. Underage Alcohol Possession 31 3. Fare Evasion 33 C. A Stalled Effort to Broadly Decriminalize Youthful Misconduct 34 III. The Refinement of Juvenile Decriminalization 36 A. Preserving Youth Accountability 37 B. Acknowledging Unwanted Side Effects 39 C. Expanding Eligibility 42 Conclusion 43 INTRODUCTION
Juvenile arrest rates have decreased significantly over the last decade. (1) In 2014, law enforcement nationwide arrested approximately one million youth under eighteen years of age. (2) This figure represents a significant drop from the almost two million youth arrested in 2005. (3) The number of delinquency cases has also declined over this timeframe. (4) From 2005 to 2014 the number of delinquency cases processed by juvenile courts decreased by 42%. (5) In 2005 juvenile courts handled more than 1.6 million juvenile delinquency cases. (6) The number of cases dropped to about 975,000 in 2014. (7) Despite these substantial decreases over a ten-year period, the number of delinquency cases handled was still quite large.
Most delinquency cases involve non-violent offenses. Generally speaking, juvenile delinquency court cases can be grouped into four categories of offenses. Most of the cases processed involved property offenses (34%), followed by victim-based crimes (27%), public order offenses (26%), and drug offenses (13%). (8)
Once a youth is referred to juvenile court, his or her case is likely to remain in juvenile court. Petitions, or complaints, were filed in about 56% of delinquency cases referred to court, leading the cases to be formally handled by the juvenile court. (9) Slightly more than 50% of petitioned cases resulted in youth being adjudicated delinquent in juvenile court. (10) Judges imposed probation in approximately 63% of these cases, with the remainder resulting in placement in a state residential facility (26%) or another sanction such as a financial or community service obligation (11%). (11) In 2013 approximately 35,000 youth were confined in juvenile corrections facilities. (12)
Some petitioned cases will be waived to adult criminal court, though the numbers have decreased in the last ten years. The number of petitioned delinquency cases that juvenile court judges then transferred to adult criminal court for prosecution declined from 7200 in 2006 to about 4000 in 2014. (13) In 2014, over 4500 youth were in adult jails and prisons. (14) Thus, despite this decline, there is still a significant number of juvenile offenders in adult jails across the county.
The declines in numbers of juveniles arrested, tried, and detained are positive steps for many children's advocates and policymakers, not to mention youth and their families. However, the number of delinquency cases is still quite large as is the number of children being supervised by probation officials or living in state facilities for youth and adults.
Additionally, these positive gains are not evenly experienced by all youth, particularly youth living in urban areas. In 2011-2012, almost 85% of children lived in urban areas. (15) Government surveillance is deployed in many urban jurisdictions; hence, misbehavior by a juvenile who lives in an urban area is likely to be detected. (16) Youth who live in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. (17) Moreover, urban jurisdictions operate complex court systems that administer large dockets of juvenile cases with greater formality and severity than non-urban jurisdictions. (18)
The reach of the justice system has a particularly disparate effect on minority youth. Minority youth tend to live in heavily-policed urban areas, and consequently, they are disproportionately involved in the juvenile justice system. (19) Approximately 15% of U.S. children ages zero to seventeen years old are black. (20) Yet,in 2014, black youth constituted 36% of the overall number of delinquency cases processed by juvenile courts. (21) Black youth made up 42% of those detained (22) and constituted 15% of youth under juvenile court jurisdiction. (23) Moreover, 62% of cases involving black youth were petitioned, in comparison to 52% for white youth. (24) In 2013, black youth comprised approximately 40% of children committed to residential placement facilities for delinquency or status offenses. (25)
Over its more than 100-year history, the juvenile justice system has dramatically transformed. The original concept of the juvenile justice system consisted of a singular, informal juvenile court focused on rehabilitating youthful offenders engaged in criminal and noncriminal conduct to help them become productive citizens. (26) The original system has been replaced by a network of juvenile, criminal, and specialty courts, any one of which may adjudicate a child's court case. (27) Once juveniles enter this complex system, many negative legal impacts can occur, including lengthy periods of community supervision or incarceration and substantial fines and fees. (28) Additionally, once involved in the justice system, children may be negatively psycho-socially affected by the experience. (29) Court-involved youth are more likely to reoffend, experience physical or mental health problems, have poor educational outcomes, and have difficulty in the job market. (30) Even after a case is resolved, youth will face collateral or indirect consequences that follow them into adulthood. (31) Generally, these consequences can impair access to higher education, employment, housing, voting, military, and citizenship opportunities. (32) Prosecutors may use juvenile cases to enhance individuals' future criminal sentences. (33) Thus, from the moment of arrest, juveniles can be damaged in the near-term and the long-term by the juvenile justice system.
This Article considers legislative decriminalization of juvenile misconduct, an underutilized method for juvenile justice reform. (34) Decriminalization can prevent youth from entering the juvenile justice system and the problems that stem from system contact. (35) This topic has received little attention in the scholarly literature, though in the last several years, a few jurisdictions scattered across the nation have decriminalized, or attempted to decriminalize, youthful behavior. (36) This Article endeavors to begin a conversation among youth scholars, advocates, and policymakers about decriminalization as a mechanism for reforming the juvenile justice systems in the United States.
Scholars and policymakers have well-documented the continuing, disproportionate flow of urban and black youth into the juvenile justice system, the long-lasting harms that flow from arrest and court-involvement, and science indicating that juvenile misbehavior is often developmentally normal. (37) These points will not be rehashed in detail. This Article also does not attempt to add to the important efforts by scholars and policymakers to propose and implement multi-faceted reforms to the juvenile justice process to improve outcomes. Instead, this Article seeks to help youth avoid the juvenile justice complex altogether by using decriminalization--a legal tool--to narrow the means of entry. (38)
This Article proceeds in three parts. Part I paints a picture of the contemporary juvenile justice system and its damaging impact on youth. Part I begins by describing two factors--over-criminalization and the school-to-prison pipeline--that contribute to the breadth of laws allowing referral of juveniles to the court system for serious and relatively innocuous conduct. (39) Once a child is referred to the court system, the case may be adjudicated in any of a number of courts: generalist juvenile courts, adult criminal courts, or youth problem-solving courts. (40) Part I next outlines the features and practices of those courts. (41) Upon entry into any one of these court systems, children can experience negative physical, emotional, and social effects. (42) Part I closes by describing these effects, which disrupt positive youth development and transition into adulthood. (43)
Part II presents decriminalization, an under-utilized juvenile justice reform measure that can prevent children from entering the system and experiencing its damaging effects. Part II opens by setting forth the basics of decriminalization as discussed in the adult criminal justice context. (44) Part II then provides examples of lawmakers decriminalizing a few minor offenses, such as school absence, underage possession of alcohol, and fare evasion, when committed by youth. (45) These decriminalization efforts are few, scattered across the nation, and limited in scope. Part II concludes with a contrasting example, the unsuccessful effort in the 2017 Florida legislative session to decriminalize a range of non-serious juvenile conduct. (46)
Part III considers barriers to the implementation of decriminalization measures and how those might be addressed in future legislation. Part III analyzes concerns that decriminalization will diminish the public's ability to hold a juvenile accountable for misbehaving. (47) Part III also posits several unintended consequences of juvenile decriminalization that could pose harm to juveniles and their families. (48) These consequences include overcharging, long-term debt creation, and increased parental liability. Part III then offers recommendations for future proposals to decriminalize youthful behavior. (49)
The Article briefly concludes that decriminalization offers a promising solution that should be undertaken...