Lise A. Young

There is growing public pressure to charge, try, convict and sentence juvenile offenders in adult criminal courts. This is a misguided and simplistic approach to a complex problem. Proven constructive alternatives exist that can be implemented if the public and its leaders are committed to real reform of America’s juvenile justice system.

The Genesis and Operation of Juvenile Courts

Juvenile courts are the product of a 19th-century reform movement that sought to address the rising number of poor and homeless children and the potential they created for increased juvenile crime in post-Industrial Revolution America. Contrary to popular belief, liberal social reformers were not the main supporters of this movement: police and prosecutors were instrumental in advocating separate juvenile courts, because youths tried in adult courts were so often released or found innocent due to jurors’ sympathy. In fact, Illinois, the first state to enact legislation establishing a separate juvenile court system, did so as the result of a state supreme court decision that had held it unlawful for judges to institutionalize children for noncriminal behavior.

From their inception, juvenile courts had a very different purpose from that of adult courts. The goal of juvenile courts was and is to try to reintegrate young offenders into the greater social fabric through the use of highly individualized sentences (called dispositions), whereas the purpose of adult criminal courts was and is primarily to punish. Juvenile courts have very broad discretion to order a wide range of interventions. A young offender can be returned home to his or her family with no services, returned home on informal probation with a commitment by the young offender and/or family to voluntarily participate in various designated services, returned home on formal probation subject to completing mandatory services designated by the court, detained (held in temporary custody by law enforcement, then released to foster care in a structured plan of services) or incarcerated. Incarceration in such circumstances is usually in a juvenile detention facility, although some states are increasingly inclined to send serious juvenile offenders to adult prisons. The key consideration in juvenile court disposition lies in determining what factors caused a youth to go astray, and then ordering whatever interventions the judge—with input from the prosecutor and/or probation officer, child welfare professionals, family members and defense counsel—deems necessary to prevent further criminality. Thus, even incarceration is viewed primarily as a corrective, not a punitive, measure.

Behind this goal lies a fundamental principle of Anglo-American jurisprudence: punishment should be proportionate to the level of evil intent (mens rea) behind a crime. Because children and adolescents are not fully developed cognitively, morally and emotionally, they should not be held to the same standards of moral accountability, but rather should be held accountable in a developmentally appropriate way.

But in the last 10 years, juvenile courts have been criticized for being too lenient and incapable of dealing with the so-called “super-predators,” who commit very few, but sensationally publicized, crimes. Juvenile courts, these critics say, were not designed to handle such crimes effectively and are unable to do so. They argue that public safety demands certain and more severe punishment of serious juvenile offenders, and that a system in which 73 percent of all referrals end with no formal services or sanctions whatsoever is flawed. They claim further that the rehabilitative goal of juvenile courts is unrealistic, given the high cost and broad range of services needed to salvage young offenders. These tough-on-crime voices have been heard by legislatures in nearly all 50 states, which over the last 10 years have modified their laws to allow more youths to be tried as adults, to reduce the informality and confidentiality of juvenile court proceedings and to increase the severity of punishments. Just last year, for example, California voters approved by 62 percent a voter initiative measure—Proposition 21—that incorporated provisions like these.

Many tough-on-crime advocates call for certain crimes to be automatically heard in adult criminal courts, with convicted offenders subject to sentencing under adult standards. Such proposals focus on the gravity of the act and its immediate impact on the victim and society, rather than on the inner disposition and motivations of the youthful perpetrator. Although intention still plays some role in determining the severity of the crime, considerations of the juvenile’s immature judgment, dysfunctional family life, low cognitive function, poor impulse control and other factors relating directly to the minor’s inner disposition are deemed irrelevant. In such an approach, minors are presumed to have the same ability to comprehend the nature of their act, to freely consent to committing it and to be totally invested in committing it as an adult—simply by virtue of the gravity of the act itself and the severity of its impact on the victim.

A graphic example of this approach was a Michigan case involving a 14-year-old boy with an I.Q. of 74 (borderline deficient) who hit a classmate and took his $2 lunch money. The boy was charged as an adult for the crime. The prosecutor said in defense of his decision: “The gravity of the crime is not diminished by whatever learning disabilities the perpetrator may have. The victim was no less frightened or traumatized.”

The principle of proportionality provides a framework for evaluating the morality of sentencing juveniles as adults. That principle states that three factors must be evaluated in determining a moral course of action: (1) the means used will not cause more harm than necessary to achieve the value; (2) there is no less harmful way at present to protect the value; and (3) the means used to achieve the value will not undermine it.

Examined in the light of this three-factor test, sentencing and punishing children by the adult criminal standards in use in this country is flagrantly immoral. First, the impact of sentencing juveniles in adult courts falls disproportionately on minority youth. Nonwhite youths in California, for example, are more than eight times more likely than white youths to be sentenced by an adult court to incarceration in a youth facility and three times more likely to be transferred to adult court for trial and sentencing. This violates the third criterion above by seriously undermining the credibility of the juvenile justice system. How can a system of law that results in such gross disparities among the races be considered fair and equitable?

Second, sentencing young people to adult punishments subjects youthful offenders to conditions that are unacceptable for children. Adult prisons offer virtually no counseling and little or no education at the secondary level. For such youths, long sentences served in adult prisons basically end all possibilities for a meaningful life once they are released as adults. Additionally, youths incarcerated in adult facilities are many times more likely to be sexually assaulted, beaten by staff or attacked with a weapon. Youth-only facilities for serious juvenile offenders convicted in adult courts often are no better. A Michigan youth prison’s rate of critical incidents (from assaults to attempted suicides) was almost three times that of the state’s adult maximum security prison. Subjecting youths to this sort of abuse is surely not only disproportionate to their moral culpability, but also undermines the very values of a society that insists that the punishment fit the crime.

Nor is the practice of sentencing and incarcerating juveniles as if they were adults acceptable according to established Catholic moral teachings on crime and punishment. According to the Catechism of the Catholic Church, there are three justifications for punishment: rehabilitation of the criminal, deterrence and retribution/preservation of public order (No. 2266). Clearly, incarcerating juvenile offenders in facilities that effectively end their chances for a productive life are anything but rehabilitative. There is little or no proof that stiff sentences for juvenile offenders are a deterrent to similar offenses, either by other juveniles or the same juvenile; in fact, statistical studies to date suggest just the opposite. A study done in Connecticut in 1996 concluded that young offenders sentenced to alternative programs have a significantly lower rate of rearrest than juveniles sentenced to adult correctional facilities. This finding was adopted by the California Legislative Analyst’s office in its analysis of the probable impacts of Proposition 21, the youth crime initiative mentioned above. A Florida study likewise showed that the recidivism rate among juveniles who were transferred to adult court was significantly higher than among juveniles who had been tried and sentenced in juvenile courts; and a New York study confirmed the Connecticut finding that the rearrest rate for children sentenced in juvenile court was 29 percent lower than for juveniles sentenced in adult criminal courts.

Willful ignorance is evident in certain public perceptions of the so-called juvenile crime “epidemic.” For example, 60 percent of the respondents in a California poll felt that youths committed “most crime nowadays,” when in fact 80 percent of the arrests in 1996 were of adult offenders. Adults committed 10 times as many homicides in 1999 as juveniles. Seventy-one percent of respondents in a national 1999 poll thought it was likely a school shooting would happen in their community, even though the chance of that actually happening was less than 1 in 2,000,000! In fact, in 1998, youth crime was at its lowest rate in the 25-year history of the U.S. Census Bureau’s polling data on youth crime. Youth homicides alone were down 68 percent since their peak in 1993. And yet, although youth crime is down, public outrage is up. People are choosing either not to hear at all or to hear only the information that supports their irrational fears and prejudices.

A Proposal for Action

There are alternatives to the unjust measures that have been, and continue to be, legislated to deal with the problem of youthful offenders. Legislators should resist the temptation to “simplify” matters by eliminating juvenile courts entirely, because such tactics are both immoral and ineffective. Instead, the basic principle of juvenile justice—to treat the child, not punish the offense—needs to be furthered in constructive new ways.

First, there should be increased efforts to identify and provide services to at-risk youths before they commit crimes. Such youths are not all that difficult to identify. They are frequently from dysfunctional families with issues of domestic violence, substance abuse, physical and/or sexual abuse; they are often truants; and they tend to resort to violence as a means of settling conflict. Such youths and their families need to be directed into publicly funded programs that can provide them with new and better educational and coping skills (e.g., tutoring, mentoring, cash incentives for graduation, conflict resolution programs in the school, parenting instruction and youth employment programs). Critics may argue that an approach of this kind is too expensive, but statistics prove that in the long run, prevention is cheaper than punishment. California, for example, recently showed renewed commitment to a rational juvenile justice policy when it paired $121 million in preventive program funding with the same amount in prosecutorial and law enforcement funding—the largest amount ever dedicated there in a single year to youth crime prevention.

Second, once juveniles are caught in the justice system, it is critical to target first-time offenders for special intervention. One program in Orange County, Calif., which targets first-time offenders for intensive services, achieved almost a 30 percent reduction in the number of probation violations or additional charges filed against young first-time offenders: a rate of repeat offenses less than half of the control group’s, and an incarceration rate about a third that of nonparticipants.

Finally, innovative alternatives to the criminal justice/punishment model, which have already been developed, should be gradually integrated into the system—especially where nonviolent crimes are involved. Such innovative alternatives include restorative justice programs and community courts. The former (which have been implemented effectively in Australia, New Zealand and at least one county in the state of Oregon), provide for carefully structured meetings among offenders, victims, their families and other community members in which the offender is confronted personally with the wrong that his/her conduct has caused others, and is involved directly in devising a way to repair the damage or harm he or she has caused. Statistical studies to date suggest that there are lower recidivism rates and greater satisfaction among participants in restorative justice projects than among those involved in traditional punishment-driven programs. Community court programs offer another alternative to traditional juvenile or adult court systems: there, juvenile offenders give back to the community they have harmed, either through money, service or both, instead of doing time in conventional correctional facilities.

A Personal Agenda for Change

I participate in programs that offer mediation as an alternative to litigation, and have seen alternative dispute resolution successfully implemented schoolwide among junior high staff, teachers and students. Our local court has had a VOMP (Victim-Offender Mediation Project) for juvenile offenders in place on an experimental basis for the last two years. The experience of owning one’s anger and working through conflict to resolution with an opponent, rather than seeking revenge, can be truly transformative. I have also lobbied for implementation of such programs at other levels of our local court system and at our parish school. Parents, educators and especially religious leaders should work toward instituting conflict resolution and conflict management programs like these in their schools and should encourage the use of such alternative dispute resolution methods in place of traditional confrontational approaches in their workplaces too. It is important to counter the massive disinformation that the popular press is currently disseminating about juvenile crime and justice issues. It is also critical for us to learn to practice, and for our children to grow up with, models of dispute resolution other than the adversarial methods we are used to.

Lise A. Young is a California attorney who practices in the area of juvenile dependency law. She received her doctor of law degree from the University of San Diego in 1981.