Social Welfare and Fairness in Juvenile Crime Regulation

Author:Elizabeth S. Scott - Laurence Steinberg
Position:Harold R. Medina Professor of Law at Columbia University. - Laurence Steinberg is the Laura Carnell Distinguished University Professor at Temple University.

I. Youths behind bars: the expanding net and its financial cost - A. The Trend Toward Incarceration - B. The Economic Costs of the Punitive Reforms - II. The effectiveness of punitive policies: do harsh sanctions reduce crime? - A. The Traditional Regime and the Failure to Prevent Crime - B. Changing Crime Rates and the Effectiveness of Punitive Policies - C. Does Deterrence Work? On Legal Reform ... (see full summary)

Social Welfare and Fairness in Juvenile Crime
Elizabeth S. Scott*
Laurence Steinberg**
The question of how lawmakers should respond to
developmental differences between adolescents and adults in
formulating juvenile crime policy has been the subject of debate
for a generation. A theme of the punitive law reforms that
dismantled the traditional juvenile justice system in the 1980s and
1990s was that adolescents were not different from adults in any
way that was relevant to criminal punishmentor at least that any
differences were trumped by the demands of public safety.
this view has been challenged in recent years; scholars and courts
have recognized that adolescents, due to their developmental
immaturity, are less culpable than adults and that the principle of
proportionality requires that teens be punished less severely for
their criminal offenses.
Moreover, some scholars have invoked
developmental research to challenge the core assumption
underlying the punitive law reforms that harsh sanctions promote
* Elizabeth Scott is the Harold R. Medina Professor of Law at Columbia
** Laurence Steinberg is the Laura Carnell Di stinguished University
Professor at Temple University.
This essay i s based in part on ELIZABETH SCO TT & LAURENCE STEINBERG,
. Matthew Thomas Wagman, Note, Innocence Lost: In the Wake of
Green, The Trend I s ClearIf You Are Old Enough to Do the Crime, You Are
Old Enough to Do the Time, 49 CATH. U. L. REV. 643 (2000).
JUSTICE 11848 (2008). The Supreme Court in Roper v. Simmons announced
that to impose the death penalty on a juvenile was cruel and unusual punishment
in violation of the Eighth Amendment of the Constitution; although the Court
offered several rationales for its conclusion, the heart of the opinion was a
proportionality analysis that emphasized the developmental immaturity of
adolescents. 543 U.S. 551, 56876 (2005) (basing this analysis on La urence
Steinberg & E lizabeth Scott, Less Guilty by Reason of Adolescence:
Developmental Immaturity, Diminished Responsibility, and the Juvenile Death
Penalty, 58 AM. PSYCHOLOGIST 1009 (2003)). In 2010 the Court followed Roper
in holding that sentencing a juvenile to life without parole for a non -homicide
offense violates the Eighth Amendment. Graham v. Florida, 130 S. Ct. 2011
public safety and reduce the social cost of juvenile crime.
there is evidence that lawmakers are listening.
In this Article, we argue that a developmental model of
juvenile crime regulation grounded in scientific knowledge about
adolescence is both fairer to young offenders and more likely to
promote social welfare than a regime that fails to attend to
developmental research. We challenge the punitive reformers who
have presumed that public safety is enhanced and social welfare
promoted if serious juvenile offenders are punished as adults, and
who have been unconcerned about whether their approach is
compatible with principles of fair punishment. We focus here
primarily on the social welfare argument for a separate and more
lenient juvenile justice system grounded in a developmental
framework. First, the argument for mitigation on the grounds of
developmental immaturity is more familiar, and although it
supports less punishment, it provides no strong basis for a separate
justice system.
Moreover, lawmakers and the public care about
accountability, but they may care even more about public safety;
fears about the threat of young superpredators propelled the
transformation of juvenile crime policy that took place in the late
twentieth century.
Thus, a regime that deals with juveniles more
leniently than adults (because they deserve less punishment) is
likely to fail in the political arena if public safety is imperiled. In
short, the viability of the developmental model depends on
evidence that the punitive response of the past generation is not
. See SCOTT & STEINBERG, supra note 2, at 181222. A few sc holars have
gone a step further, arguing that public safety should be the only goal of juvenile
crime regulation. See Christopher Slobogin & Mark R. Fondacaro, Juvenile
Justice: The F ourth Option, 95 IOWA L. REV. 1 (2009).
. In the past few years, po licymakers have retreated somewhat fro m the
punitive reforms of the 19 90s, often pointing to rese arch on j uveniles‘
developmental immaturity. See, e.g., Editorial, Two Words: Wasteful a nd
Ineffective, N.Y. TIMES, Oct. 10, 2010, at A22 (describing New York ‘s closure
of institutional juvenile justice facilities that contribute to reo ffending, and
arguing for expedition of more closings).
. Barry Feld has argued for a unitary justice system in which juveniles
receive a ―youth discount‖ and rec eive shorter sentences. BARRY C. FELD, BAD
also Barry C. Feld, The Tr ansformation of the Juvenile Court, 75 MINN. L. REV.
691 (1991).
. This term was coined by University of Pennsylvania criminologist J ohn
DiIulio, who in 1995 predicted that the new century would bring a juvenile
crime wave far worse than the 1990s. John J. DiIulio, Jr., The Coming of the
Super-Predators, WKLY. STANDARD, Nov. 27, 1995, at 23. DiIulio later
expressed regret for the hyper bole and acknowledged that the prediction had not
come to pass. Elizabeth Becker, As Ex-Theorist on Young Superpredators,
Bush Aide Has Regrets, N.Y. TIMES, Feb. 9, 2001, at A19.
only inconsistent with basic principles of fairness, but also that it
has failed to minimize the social cost of juvenile crime, and that
regulation based on social science research is more likely to attain
this goal.
The recent punitive reforms embodied a view that society‘s
interests are promoted by tough incarceration policies under which
more youths are dealt with in the adult system and offenders in the
juvenile system are incarcerated for longer periods of time.
claim that these measures will reduce juvenile crime is critical to
the social welfare justification for more punitive sanctions, but it
turns out to be hard to evaluate. Juvenile crime indeed has declined
since its peak in the early 1990s, but the causes of the decline are
As we will see, studies that have examined the impact of
the adoption of punitive policies on youth crime rates yield mixed
results, offering little support for the claim that the declining crime
rates are largely due to the enactment of harsher laws.
Evaluating the impact of the punitive reforms also requires
consideration of factors other than crime rates. First, the economic
costs of tough laws are substantial, as legislatures and government
agencies are beginning to recognize.
Resources spent on building
and staffing correctional facilities needed to incarcerate more
juveniles for longer periods are not available for other social uses.
Even assuming that tough sanctions can reduce juvenile crime, at
some point the additional dollars expended may not offer enough
. The views of Alfred Regnery, head of the Office of Juvenile Justice and
Delinquency Prevention under President Reagan, are typical of critics of the
traditional juvenile court who endorsed tough sanctions for young offenders.
―[T]here is no reason that society should be more lenie nt with a 16-year-old
offender than with a 30-year-old offender.‖ Alfred S. Regnery, Getting Away
with Murder : Why th e Juvenile Justice System Needs an Over haul, 34 POLY
REV. 65, 68 (1985).
. See infra Part II.B. For example, many states enacted punitive reforms
after crime rates began to fall, suggesting that other factors have played a role. The
adoption of Proposition 21 in California is a good example. In 2000, when the
referendum making transfer easier passed, juvenile crime rates had been declining
for five or six years. See SCOTT & STEINBERG, supra note 2, at 10217.
. See in fra Part II.CD.
. This has become a key issue in adult sentencing as well. See Rachel E.
Barkow, F ederalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276
(2005). Barkow argues that cost considerations can function as an important
constraint on punitive sentencing policies and points to state legislatures that
have retreated from harsh sentencing refor ms in the face of rising costs. She
points out that in the 1990s, state governments d oubled the amount spent on
corrections due to get-tough policies. Id. at 1287. For a discussion of the rising
costs of juvenile crime, see infra P art I.B.

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