By Barry C. Feld. Full text here.
During the 1980s and ’90s, state lawmakers shifted juvenile justice policies from a nominally offender-oriented rehabilitative system toward a more punitive and criminalized justice system. Punitive pretrial detention and delinquency dispositions had a disproportionate impact on minority youths. Notwithstanding the past two decades’ drop in serious youth crime and violence, punitive laws and policies remain in effect. Despite juvenile courts’ convergence with criminal courts, states provide delinquents with fewer and less-adequate procedural safeguards than those afforded adults. Developmental psychologists and policy analysts contend that adolescents’ compromised ability to exercise rights—Miranda, competence to stand trial, waiver of counsel, and denial of jury—require greater procedural safeguards to offset their limitations in a more legalistic punitive system and to avoid risks of wrongful convictions.
Transfer laws enacted during the Get Tough Era sent more youths and younger youths to criminal courts for prosecution as adults, emphasized offenses over offender characteristics, and shifted discretion from judges conducting waiver hearings to prosecutors making charging decisions. Although youth violence and drug crimes have declined substantially, those harsh laws remain in effect. Judges sentence youths in criminal courts similarly to, or more severely than, adult offenders. The U.S. Supreme Court in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama limited the harshest sentences imposed on youths, emphasized adolescents’ diminished responsibility, and relied on developmental psychology and neuroscience research to bolster its conclusions about their reduced culpability. However, the Court’s decisions provided affected youths limited relief and states with limited guidance to implement their rationale. States’ judicial and legislative responses inadequately acknowledge that children are different, and should require a more consistent strategy to recognize youthfulness as a mitigating factor—a youth discount. This Article concludes with policy reforms to address juvenile and criminal courts’ failure to provide justice for children.