Juvenile Crime and Criminal Justice: Resolving Border Disputes

By Fagan, Jeffrey | The Future of Children, Fall 2008 | Go to article overview

Juvenile Crime and Criminal Justice: Resolving Border Disputes


Fagan, Jeffrey, The Future of Children


Summary

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundarydrawing regime and how effective it has been in reducing crime.

The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the competing interests of public safety and the possibility of rehabilitating young offenders. This authority has now been usurped by legislators and prosecutors. The recent changes in state law have moved large numbers of juveniles into the adult system. As many as 25 percent of all juvenile offenders younger than eighteen, says Fagan, are now prosecuted in adult court. Many live in states where the age boundary between juvenile and criminal court has been lowered to sixteen or seventeen.

The key policy question is: do these new transfer laws reduce crime? In examining the research evidence, Fagan finds that rates of juvenile offending are not lower in states where it is relatively more common to try adolescents as adults. Likewise, juveniles who have been tried as adults are no less likely to re-offend than their counterparts who have been tried as juveniles. Treating juveniles as adult criminals, Fagan concludes, is not effective as a means of crime control.

Fagan argues that the proliferation of transfer regimes over the past several decades calls into question the very rationale for a juvenile court. Transferring adolescent offenders to the criminal court exposes them to harsh and sometimes toxic forms of punishment that have the perverse effect of increasing criminal activity. The accumulating evidence on transfer, the recent decrease in serious juvenile crime, and new gains in the science of adolescent development, concludes Fagan, may be persuading legislators, policymakers, and practitioners that eighteen may yet again be the appropriate age for juvenile court jurisdiction.

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At the outset of the juvenile court more than a century ago, juvenile court judges were given the option to expel cases and transfer them to criminal court. Transfer was an essential and necessary feature of the institutional architecture of the new juvenile court. Indeed, transfer helped maintain the court's legitimacy by removing hard cases that challenged the court's comparative advantage in dealing with young offenders--cases that critics could use to launch attacks on the court's efficacy and therefore its core jurisprudential and social policy rationales.

Unlike today, though, hard cases in the early years of the juvenile court did not necessarily involve children charged with murder or other violence. Rather, the youth who were expelled more often were thought to be "incorrigible"--repetitive delinquents whose failure to respond to the court's therapeutic regime signaled the intractability of their developmental and social deficits. (1) Such cases negated the theory of the court: these youth's repeated failures to respond to treatment canceled their eligibility for protection from the harmful regimes of criminal punishment. In fact, for more than five decades, juveniles charged with murder were more likely than not to be retained in the juvenile court, beneficiaries of both its diversionary and stigma avoidance rationales. (2)

During these years, decisions to transfer youth to criminal court were made routinely and almost exclusively by juvenile court judges with little attention or scrutiny from legislators, advocates, scholars, or the press. Their decisions were individualized to the unique factors for each youth. That is, judges decided which youth were immature and "amenable to treatment" on a case-by-case basis. …

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