Juvenile Justice: The Fourth Option

Author:Christopher Slobogin; Mark R. Fondacaro
Position:Professor of Law, Vanderbilt University Law School/Professor of Psychology at John Jay College of Criminal Justice, City University of New York

The current eclectic mix of solutions to the juvenile-crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime... (see full summary)


    Slobogin is the Milton Underwood Professor of Law, Vanderbilt University Law School; Fondacaro is a Professor of Psychology at John Jay College of Criminal Justice, City University of New York. We would like to thank participants at workshops or conferences at Brooklyn Law School, Northwestern University Law School, The Ohio State University Moritz College of Law, The University of Texas School of Law, Vanderbilt University Law School, Washington University Law School, and Wayne State University Law School for their comments on the ideas expressed in this paper or on antecedent papers.

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I Introduction

The usual story told about the juvenile justice system is that it must follow one of three paths. The "rehabilitation" path, which probably comes closest to the original motivation for establishing a separate court for juveniles, treats troubled youths as innocent and salvageable beings who must be kept away from adult criminals to enhance their chances of becoming productive citizens.1 Under the rehabilitative view, the triggering act need not be criminal, disposition is designed to make the child a better person, and confinement meant as punishment is to be avoided. The second path—"adult retribution"—heads in the opposite direction. In vogue among many state legislatures in recent years, the adult-retribution approach posits that most young people who commit crime are fully accountable individuals who should be punished in the same fashion as adults.2 This path leads to broad transfer-to-adult-court jurisdiction, adult-like sentences in juvenile court, or both. The third option, which probably represents the consensus academic view as well as the practice in a number of jurisdictions, sits somewhere in between the rehabilitative and adult-retribution approaches. It treats juveniles as neither innocent nor fully culpable, but rather posits that their responsibility is diminished because of their youth.3 Under this "diminished-retribution" model, dispositions are discounted proportionate to the degree of immaturity, either on an individual basis or categorically.

This Article describes a fourth option for juvenile justice—what we call "individual prevention." Framed in terms of the traditional purposes of punishment, the focus of the individual-prevention model is specific deterrence through treatment and, if necessary, incapacitation. Because of its focus on treatment, this path is closely related to the rehabilitation vision. Unlike the rehabilitative model, however, the individual-prevention approach avoids claiming that juveniles are legally innocent or excused because of their youth, retains the retributive model's threshold requirement of a criminal act, and is single-mindedly focused on recidivism reduction rather than the broader goal of creating a well-socialized individual. Its primary divergence from the two retributive models is its rejection of relative culpability as the basis for the duration and type of disposition. Instead of that metric, the individual-prevention model favors assessments of risk that vary the intervention depending on the most effective, least restrictive means of curbing future crime.

This Article argues that the individual-prevention approach to juvenile justice is preferable to the other three because it fits best with our currentPage 4 knowledge about the causes and treatment of youthful offending, is the easiest to justify under current legal doctrine, and provides the most persuasive explanation for maintaining a separate juvenile justice system.

Consider first what we know about juveniles who commit crime. Recent research, described in more detail later in this Article,4 can be summarized in terms of three important findings relating to the psychology, context, and treatment of juvenile offending. First, while juvenile offenders above the age of nine or ten normally can form criminal intent and understand the wrongfulness of their actions in a shallow sense, both pre-teen and teen offenders are less likely than adults—for a host of psychological and biological reasons—to consider the consequences of their actions or the prospect of punishment. Second, while juvenile offending, like adult offending, is in part the result of "internal" desires and beliefs, it is also particularly prone to the influence of context—peers, families, and neighborhoods. Third, following naturally from the second finding, the most successful way to reduce most juvenile offending is not incapacitation in a detention facility—a disposition that studies show is likely to increase recidivism—but rather intervention in the community specifically designed to ameliorate or eliminate the contextual risk factors (as well as psychological risk factors) associated with crime.

The first set of findings, on the psychology of juvenile offenders, indicates that adolescent—and even many pre-adolescent—offenders are not "innocent" as a legal matter, thus undercutting the key premise of the rehabilitative model. But it also suggests that youthful offenders are distinguishable from adult criminals from a psychological perspective, and thus are not ideal candidates for the adult-retribution approach. These two conclusions might seem to support the diminished-retribution model. But in fact they do not, because current criminal-law doctrine requires very serious impairment before culpability mitigation can occur. For instance, adult criminal offenders with a mental disability rarely receive reduced sentences, yet their legally relevant capacities are substantially more diminished than those of the typical teenager. Moreover, the most significant traits of adolescent immaturity are not compromised cognitive abilities, but rather impulsivity and a tendency to give into peer pressure—traits which seldom support a case for mitigation for adults.5

In contrast, the research on the psychology of juvenile crime strongly supports the premises of the individual-prevention model, which neither assumes juvenile offenders are innocent, nor attributes significance to gradations in culpability between adults and adolescents. As we explain laterPage 5 in this Article,6 for prudential reasons an individual-prevention regime would require a conviction for a criminal act as a predicate for intervention, and thus would not treat the juvenile offender as blameless like the rehabilitation model does. At the same time, unlike the retributive models, the all-important dispositional decision in a prevention regime is focused on risk. Thus, neither the outcome in individual cases nor the operation of the system as a whole relies on the proposition that juveniles are fully culpable (as contemplated by the adult-retribution model) or the equally questionable proposition that they are substantially less culpable than adults (the premise of the diminished-retribution model).

A similar analysis applies to the second set of empirical findings, to the effect that contextual factors heavily influence juvenile offenders. While perhaps useful as an explanatory matter and thus sympathy-inducing, these types of research conclusions usually would not be given legally mitigating effect in the adult criminal justice setting.7 Thus, once again science is ignored by the adult-retribution model, which considers the debilitating effects of context irrelevant, and provides only tenuous support for the diminished-retribution model, which requires that those effects be seriously compromising. In contrast, the findings regarding the ecological etiology of juvenile offending are of much more relevance in rehabilitation and individual-prevention regimes, and particularly so in the latter type of system, where they can be extremely helpful in devising instruments for assessing risk and in designing post-conviction programs that reduce the antisocial effects of immaturity and environment.

The third major research finding—that juvenile crime is most effectively reduced through community interventions specifically aimed at antisocial conduct—also fits more comfortably with an individual-prevention approach than with the other three approaches. Because the goal under the individual-prevention approach is public safety, these community-based programs should be the disposition of choice. This conclusion is not as clearly warranted, however, in a purely rehabilitative regime, which might accommodate any program, including segregation, that can help the juvenile "improve."8 Endorsement of a community-based dispositional regime is even more difficult under the adult- and diminished-retribution models. Adult punishment is usually associated with some type of imprisonment. Even punishment that has been discounted due to juvenile immaturity is hard to square with community programs, at least when the crime committed is a felony. Thus, the research suggests that an honestlyPage 6 applied retributive regime—adult or diminished—cannot take full advantage of advances in reducing juvenile recidivism and, indeed, is likely to lead to higher levels of recidivism, given the finding that incarceration tends to exacerbate the reoffending rate.

The individual-prevention model is also the easiest to justify as a jurisprudential matter. The foregoing discussion should make clear why the legal...

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