Author:Elliott, John D.

    Prior to the nineteenth century, child criminals were treated as small adults. (1) This paternalistic view "failed not only by sacrificing public safety ... but also, more surprisingly, by not promoting the welfare of youths in the system." (2) A transformation took place, however, and children became viewed as those who have less control over their own actions compared to adults. (3) This coincided with the social science reformation of the penal law to a criminal justice system with an emphasis on rehabilitation. (4) Thus, juveniles were treated in proceedings considered to be civil in nature rather than criminal, and a close look at each juvenile's needs would lead to an indeterminate sentence which was nonproportional to the crime. (5) The transformation was impelled in part by the United States Supreme Court decisions in In re Gault (6) and In re Winship. (7) These cases and others emphasized that adjudication of juveniles required some of the same procedural protections adults had and, importantly, turned the rehabilitative view back to the punitive scheme by "formalizing the connection between criminal conduct and coercive intervention...." (8) Although the Court emphasized the importance of proof of a commission of a crime, it stood firm on the premise that juveniles must largely be kept separate from the treatment of adult offenders. (9)

    The transformation from rehabilitation to more punitive treatment was also shown by states such as New York and Illinois beginning to treat juvenile offenders differently. (10) After juvenile arrests for violent crimes increased by 216% between the sixties and early seventies, Congress stepped in by enacting the Juvenile Justice and Delinquency Prevention Act (JJDPA) in 1974. (11) In the 1980s and 1990s, states side-stepped the JJDPA in circumstances involving violent crimes through legislation defining the age and crime committed where a juvenile would be treated as an adult. (12) This coincided with the overall rise in serious crimes committed by juveniles which took place beginning in the mid-1980s. (13) "Not only did the juvenile violence and homicide rates increase at a faster pace than those of adults, but the average age of juvenile arrestees decreased." (14)

    The JJDPA paralleled the efforts to influence the juvenile justice system. The Institute of Judicial Administration ("IJA") and the American Bar Association ("ABA") developed reports and coordinated information on juvenile crime in 1973. (15) The commission determined that "all special offenses for juveniles" be repealed and, when a juvenile offender is involved, certain considerations that take into account the condition and situation of each juvenile would be considered. (16) The commission, with uniformity in mind, concluded that most law governing the behavior of adults would be applicable to juveniles. (17) It "emphasized [there was a distinct] relationship between age and sanctions" and that age should be a mitigating factor. (18) In an attempt to encourage states to have more juveniles adjudicated in the juvenile courts, the Standards prohibited the transfer of any youth under fifteen years old to the adult system for even serious offenses. (19) States also were encouraged to look to alternatives available in each system that would influence the disposition of the juvenile. (20) For transfer to even be a consideration under the Standards, the juvenile must have committed a "serious" offense. (21)

    Despite the efforts to create special treatment for juveniles, the early nineties showed another dramatic increase in violent crime committed by juveniles. (22) Congress amended the JJDPA and followed the lead of the states, creating more avenues for youngsters to be treated as adults. (23) "[V]irtually every state passed harsh, punitive laws and many abandoned the focus on rehabilitation." (24) The question arose as to whether sentencing schemes for juveniles provided enough punishment for a serious or violent juvenile offender; in other words, whether the schemes provided the "just deserts" for the crimes committed. (25) Those perceptions heavily influenced the sentencing reforms of the 1990s, when child "superpredators" were predicted to roam the streets. (26)

    Legislative changes on the state level increased chances of juvenile prosecution in adult court by decreasing the numbers of those eligible to be considered juveniles. (27) "Blended sentence[ing]" began to take one of five basic forms during this time where a judge could mix together the adult and juvenile sentence methods. (28) Blended sentencing laws "attempt to meld the sentencing authority of juvenile with criminal courts, to provide longer sentences for serious crimes than otherwise would be available to the juvenile court, or to increase the rehabilitative sentencing options available to criminal courts." (29) The turn to the adult court caused by increased concern for public safety was especially evident in cases where a juvenile committed a violent or other serious crime. (30) In addition to being tried in adult criminal courts, juveniles were subject to serving sentences in adult corrections. (31) The results of increased incarceration decreased juvenile violent offenses by 2001. (32) On the other hand, however, even though "[i]ncarceration might protect the public from a child for a given length of time,... it did nothing to prepare that youth" for reentry. (33) Thus, the struggle between the purposes of criminal punishment continued. (34) Eventually, the strict punitive approach that developed in the 1990s would be largely rejected. (35)

    In 2008, the United States incarcerated juveniles almost five times the rate of the next highest nation in the world. (36)"Law enforcement agencies arrested 2,111,200 juveniles" in that year and "[a]bout 25% of the arrests pertained to violent (i.e., robbery, rape, aggravated assault, murder, and manslaughter) or property... index offenses." (37) Public perception changed from that in the 1990s to increasingly focusing attention on the scientific evidence that displays the differences between adults and juveniles. (38) The entire juvenile justice system provokes a variety of strong feelings, with one side emphasizing public safety and the other having strong concerns for the youth. (39) States began to combine the ideas of holding juveniles accountable to protect public safety as well as rehabilitation. (40) The main idea is that juveniles, because of the psychological differences when compared to adults, should be punished differently due to a risk of error in trying to find those with psychological maturity. (41) For example, according to the Standards, the appropriate way to evaluate whether the requisite mens rea is present in an adjudication requires consideration "of the juvenile's age, maturity, and mental capacity... in the juvenile's situation." (42) Transfer statutes have emerged, however, that subject even ten-year-old's to criminal court, "and a large minority of states have no statutory minimum age of transfer. (43) Instead of the traditional view that juveniles are less mature and less culpable for their conduct in serious criminal acts, the focus in some states is on the seriousness of the crime. (44) Other states take youth into account more indirectly by making it a mitigating factor, but this can also sometimes be within the judge's discretion. (45)

    Today's approach is almost across the board indeterminate in its sentencing for juveniles. (46) The "[r]ationale for indeterminate sentencing is a highly individualized penalty that provides opportunity for rehabilitation and includes a review of an offender's progress toward that objective." (47) Typically, a juvenile court will sentence a youngster for an indefinite term which "should terminate no later than the [twenty-first] birthday of the juvenile subject to such order." (48) Release from custody depends on a variety of factors, both concrete and amorphous, such as the child's behavior, perception of blameworthiness, etc. The mechanism for release varies from state to state. A recent survey by the National Center for Juvenile Justice (the research arm of the National Council of Juvenile and Family Court Judges) shows twenty-two states provide for release by the institution's agency; ten states provide for release by the sentencing court; eight provide for release by a parole board; and eleven states provide for a hybrid of a release decision jointly made by the agency and the juvenile court. (49) The releasing agency making the decision varies across states but could be the court or a state agency who reviews the child's progress and treatment.

    States have given their juvenile courts extremely broad discretion in juvenile delinquent confinement decisions. (50) This discretion, although limited in some respects by legislation, causes unpredictability in the system, and the discretion has also been shown to cause discriminatory decisions. (51) The basis for the discretion lies with the parens patriae concept that promotes individualization of each juvenile offender. (52) However, "it also exposes 'disadvantaged' youths to the prospects of more extensive state intervention." (53)

    By 1980, the ABA had completed and endorsed the proposed Standards. The Standards and their supporting commentary made it clear that the Standards rejected the medical or therapeutic model of dispositions entered by a juvenile court, including indeterminate sentences, in favor of a model that relied on principles of legal and procedural justice. This included the principle of proportional punishment for serious offenses committed by youth. As Barbara Flicker summarized:

    Sentences or dispositions should be determinate. The practice of indeterminate sentencing, allowing correctional authorities to act arbitrarily to release or confine juveniles as the convenience of their programs dictates, should be...

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