Juvenile Justice

• Author: Peter J. Benekos,Alida V. Merlo
• Published date: 01 January 2008
• Date: 01 January 2008
• DOI: http://doi.org/10.1177/1541204007308423
• Published By: Sage Publications, Inc.
• Subject Matter: Articles

28

Juvenile Justice

The Legacy of Punitive Policy

Peter J. Benekos

Mercyhurst College

Alida V. Merlo

Indiana University of Pennsylvania

Although the future of juvenile justice policy is uncertain, the impact of policies from the

1990s is clear: Despite declining juvenile crime rates, the adultification of youth continues to

include punitive and exclusionary sanctions. Attitudes toward offenders are ambivalent, but

there is evidence that legislators and the public are reluctant to abandon the punitive policies

of the 1990s. Simultaneously, there are indications of more enlightened approaches to juvenile

justice. In this context, the authors review the state of juvenile justice policy and review trends

in waiver and sentencing.

Keywords: waiver; life without parole; juvenile justice policy; youth incarceration

Introduction

School shootings, along with other killings by youth, continue to occur in the United

States (Marley, Held, & Richards, 2006; MSNBC.com, 2006). These homicides highlight

both youth violence and youth vulnerability to victimization. Concern over youth violence

has been exacerbated by the FBI Uniform Crime Report data, which indicate that juvenile

arrests for murder in 2005 increased by almost 20% from 2004 arrests, with 711 youth

under the age of 18 arrested for murder. Arrests of youth under 18 for armed robbery also

increased 11% from 2004 to 2005 (Uniform Crime Reports, 2006). In their analysis of

these data, however, Butts and Snyder (2006) caution against drawing conclusions reacting

to a “relatively small increase” reported in a few major cities (p. 8). In the context of a gen-

erally sustained decline in violent crime, the authors conclude that “It is premature to pre-

dict a coming wave of serious violent crime after 1 year of increase” (p. 8).

This information about school shootings and crime trends presents conflicting images.

School shootings like those that were widely publicized in the 1997-1998 academic year

continue to garner headlines and to create fear that supports reactive policies. Although the

Indicators of School Crime and Safety reports that 21 homicides occurred in schools in

2004-2005 compared to 19 in 2003-2004, the trend in school violence has continued to

Youth Violence and

Juvenile Justice

Volume 6 Number 1

January 2008 28-46

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Authors’Note: An earlier version of this article was presented at the Annual Meeting of the American Society

of Criminology, Los Angeles, November 2006. The authors acknowledge the research assistance of Audry

Passetti and thank the anonymous reviewers for their constructive comments for improving the manuscript.

Correspondence concerning this article should be addressed to Peter J. Benekos, Criminal Justice Department,

Mercyhurst College, Erie, PA 16546; e-mail: pbenekos@mercyhurst.edu.

Benekos, Merlo / Juvenile Justice 29

decline (Dinkes, Cataldi, Kena, & Baum, 2006). Simultaneously, increases in juvenile arrests

for murder and armed robbery do not comport with images of youth being less violent than

in the past decade. Nonetheless, the incidence of arrests for youth under the age of 18 in

2005 was 3.1% less than in 2004, and considerably less than in 1996 (Uniform Crime

Reports, 2006). As reported by Puzzanchera, Adams, Snyder, and Hang (2006), the rate of

juvenile arrests for violent crimes dropped from 330 per 100,000 youth (ages 10-17) in

1999 to 271 per 100,000 youth in 2004, an 18% decrease.

This article examines the current state of juvenile justice policy and considers whether

there has been a softening in public attitudes toward youthful offenders and how these

attitudes have affected existing policies. Specifically, the authors review recent data on

juvenile waiver, the incarceration of juveniles with adults, and juveniles who are serving

life sentences without the possibility of parole. If there is evidence of a softening in atti-

tudes toward juvenile offenders, it would indicate a retreat from the “get tough” philosophy

that has characterized juvenile justice policy in the last 20 years. However, as Hutchinson

(2005) observed, “Lawmakers are loath to do anything that can make them appear soft on

crime. That is still considered the kiss of death for political careers” (para 6). This would

suggest reluctance to change the course of policy.

Lessons of Roper v. Simmons

In March, 2005, the U.S. Supreme Court determined that executing juveniles under the age

of 18 constituted cruel and unusual punishment in violation of the Eighth Amendment (Roper

v. Simmons, 2005). Death row inmates who had been sentenced as juveniles typically received

life sentences after Roper. For example, Governor Rick Perry commuted the death sentences

of 28 offenders to life in prison (Death Penalty Information Center, 2006). In capital murder

cases, Texas juries previously could sentence an offender to death by lethal injection or to life

in prison, which meant that after 40 years the offender could be considered for parole.

However, after commuting the death sentences of the 28 offenders to life, the Governor also

signed into law a new bill that prohibits parole in life sentences, but it is not to be applied

retroactively. For those offenders sentenced to life after September 1, 2005, life in prison in

Texas is life without possibility of parole (Death Penalty Information Center, 2006).

Even before the Court’s decision in Roper, support for the death penalty, as evidenced

by the number of juveniles sentenced to be executed, had been receding. For example, in

1999, 14 juveniles were sentenced to death. By contrast, 2 were sentenced to death in

2004. These data suggest that juries and judges appeared reluctant to impose the death

sentence on offenders who were under 18 at the time of the crime. The reduction in the

number of death sentences could be interpreted as an indication of a softening in attitudes

toward youthful offenders. In Roper, the justices concluded that juveniles, compared to

adults, were perceived as less culpable. In particular, they noted that juveniles are less

blameworthy than adults because they are more immature and less responsible than adults,

more likely to be influenced by external pressure including peer pressure, and more vul-

nerable, in part, because they have less control over the environment than adults (Benekos

& Merlo, 2005). Finally, the justices noted the differences in character between juveniles