Juvenile Transfer in the United States

Abstract

From its inception in 1899 and throughout most of its 100-year history, the American juvenile court was firmly rooted in the doctrine of parens patriae. Nascent ideas about differences between young people and adults were especially influential in the creation of a separate juvenile court, whose establishment coincided with the emergence of the fledgling discipline of developmental psychology and with what has come to be known as the child study movement. Two ideas that were advanced in the child-study literature were especially influential (Ryerson 1978: 28–29). The first focused on “childhood innocence”. Greatly influenced by Darwin’s theory of evolution, some argued that children were amoral from birth but were destined to evolve naturally into moral and law-abiding adults. From this perspective, children and adolescents lacked sufficient maturity to be held criminally responsible for their bad acts. Their misdeeds were normal and temporary and would be naturally outgrown in due course, so long as corrupt or misguided adults did not bungle natural processes of development. Thus, Richard Tuthill, the first juvenile court judge in Chicago, warned of “brand[ing] [a child] in the opening years of its life with an indelible stain of criminality” and of placing a child “even temporarily, into the companionship of men and women whose lives are low, vicious, and criminal” (Tuthill 1904: 1–2). Those who shared Tuthill’s view supported a diversionary rationale for the juvenile court: the court would shield youth from criminal convictions and from adult correctional institutions, where exposure to depraved adults might derail their natural development (see also Zimring 2000).

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6.1 Children and Adolescents in the Early Juvenile Court

From its inception in 1899 and throughout most of its 100-year history, the American juvenile court was firmly rooted in the doctrine of parens patriae. Nascent ideas about differences between young people and adults were especially influential in the creation of a separate juvenile court, whose establishment coincided with the emergence of the fledgling discipline of developmental psychology and with what has come to be known as the child study movement. Two ideas that were advanced in the child-study literature were especially influential (Ryerson 1978: 28–29). The first focused on “childhood innocence”. Greatly influenced by Darwin’s theory of evolution, some argued that children were amoral from birth but were destined to evolve naturally into moral and law-abiding adults. From this perspective, children and adolescents lacked sufficient maturity to be held criminally responsible for their bad acts. Their misdeeds were normal and temporary and would be naturally outgrown in due course, so long as corrupt or misguided adults did not bungle natural processes of development. Thus, Richard Tuthill, the first juvenile court judge in Chicago, warned of “brand[ing] [a child] in the opening years of its life with an indelible stain of criminality” and of placing a child “even temporarily, into the companionship of men and women whose lives are low, vicious, and criminal” (Tuthill 1904: 1–2). Those who shared Tuthill’s view supported a diversionary rationale for the juvenile court: the court would shield youth from criminal convictions and from adult correctional institutions, where exposure to depraved adults might derail their natural development (see also Zimring 2000).

Others claimed that children were naturally inclined from birth to be good and moral (Ryerson 1978: 29–31). They might occasionally commit bad acts, not out of a desire to do harm, but out of ignorance of the rules that it was incumbent on adults to teach them. Benjamin Barr Lindsey, the first judge of the Denver Juvenile Court, espoused this view. He was instrumental in the passage of a landmark legislation to impose penalties on parents and guardians for “contributing to the delinquency of a minor”. Lindsey claimed that juvenile delinquents were not only blameless for their behavior, but were also victims, deserving of sympathy and guidance (Harris 1914: 311). Such a view of childhood innocence supported a rehabilitative or interventionist rationale for the court.

Another core idea on which the juvenile court was founded is that children are more malleable than adults. Nathan Oppenheim, a leading pediatrician of the period, explains: “[The child] is in no way really like an adult, since his condition is one of continuous change (Oppenheim 1898, p. 9)…[H]e is so plastic that his daily surroundings mould him as surely as a warm hand shapes a piece of wax” (Oppenheim 1898, p. 83). Malleability, together with immaturity, provided strong justification for coerced but non-punitive intervention. With naive optimism (some would say arrogance) about their “child saving” abilities, pioneers in the juvenile court movement sought to shield young people from the harshness of the criminal process, and to “substitute constructive efforts for the purely negative and destructive effects of the customary punishments” (Travis 1908, p. 187).

For much of the juvenile court’s history, proceedings were informal and nonadversarial. Proof of the offense – which might be seen as a logical and necessary predicate to an inquiry into the child’s needs and circumstances – was often handled in a peremptory way. In many jurisdictions standards of proof were low, if the court acknowledged any at all. There was little concern about protecting children from erroneous adjudications of delinquency because the upshot of such an error would presumably be the delivery of benign treatment from which the child might profit anyway. The benign nature of juvenile court intervention was also reflected in the scope of the court’s authority, which included youths accused of crimes, status offenders, and those who were believed to be “at risk” for delinquency.

Judge Julian Mack, who became presiding judge of the Cook County juvenile court in 1904, set forth the primary focus of the juvenile court in an influential law review article:

[The criminal court] put but one question, “Has he committed this crime?” It did not inquire, “What is the best thing to do for this lad?” It did not even punish him in a manner that would tend to improve him; the punishment was visited in proportion to the degree of wrongdoing evidenced by the single act…. Why is it not just and proper to treat these juvenile offenders, as we deal with the neglected children, as a wise and merciful father handles his own child whose errors are not discovered by the authorities? Why is it not the duty of the state, instead of asking merely whether a boy or a girl has committed a specific offense, to find out what he is, physically, mentally, morally, and then if it learns that he is treading the path that leads to criminality, to take him in charge, not so much to punish as to reform, not to degrade but to uplift, not to crush but to develop, not to make him a criminal but a worthy citizen (Mack 1909, p. 107).

The realization of Mack’s vision “to understand” and “to uplift” was best served, it was believed, through the establishment of a warm, avuncular relationship between the judge and the child. Because the judge needed to understand the child’s problems and needs, it was essential that the child be encouraged to talk freely. Thus, defense counsel was seen not only as unhelpful but as obstructive of the court’s purposes. Procedural informality would best serve the objectives of understanding the child and planning his/her treatment. The child met with the judge in a setting that was less formal and threatening than a standard courtroom. Softer language – petition, adjudication, disposition – replaced the stigmatizing lexicon – complaint, indictment, prosecution, conviction, sentencing – of the criminal court.

Ideal meets Reality: At its inception, the juvenile court was a fragile institution whose future was very much dependent on public support. It soon became apparent that the behavior of some young offenders – especially violent youth and chronic offenders – threatened to erode that support (Tanenhaus 2004, p. 42). Commission of a serious violent act neither transforms a young person into a fully responsible adult nor renders him a poor candidate for juvenile intervention, but the public tended to view young violent offenders not as immature children, but as sophisticated and adult-like, and pressed for harsh punishments.¹ One commentator explains:

The apparent philosophy behind statutes concerning juvenile offenders is that a child has not reached a degree of intellectual and emotional development that would qualify him as fully responsible for his acts. The laws, however, embody an obvious contradiction: for when the offense is too obnoxious or repugnant, complete responsibility is placed upon the child and he must face the full weight of the law (Banay 1947, p. 13).

Persistent recidivists posed at least as great a challenge for the court. Their failure to respond to the court’s interventions suggested that young people might be more intractable than juvenile court advocates had made them out to be.

One solution, which was used from the start, was to transfer these “problem cases” to the criminal court. While transfer was inconsistent with the juvenile court’s foundational principles, it was politically expedient. So, for example, we find that only 1 year after the juvenile court was established in Chicago, Judge Tuthill quietly and without fanfare referred 37 boys to the grand jury as “not fit subjects” for juvenile court. Other juvenile courts quickly followed suit. By relinquishing authority over a few, judges attempted to placate the public and preserve the juvenile court’s diversionary and rehabilitative commitments to the vast majority of young offenders.

Although the boundaries of juvenile court jurisdiction were permeable from the start, by the mid-1920s the court had done much to shore up its perimeter and to fortify its legitimacy as an institution. This was accomplished in a number of ways. In some jurisdictions, juvenile court proceedings were open to the public so that the community might see the good that the court was doing on behalf of young people. Judges and probation officers used these proceedings as opportunities to educate the public, and also gave lectures that underscored the plight of poor, especially immigrant children. There was great faith that education would energize the public to ensure that conditions facing children would be improved (Breckenridge and Abbott 1912, p. 11). A real boost to the court’s legitimacy came in 1923 with the publication of the first Juvenile Court Standards (United States Children’s Bureau 1923). The standards set national norms for the court’s broad jurisdiction over children and over parents who failed their obligations, highlighted the need for ancillary court clinics to assess each child, emphasized the notion of individualized treatment tailored to the needs and circumstances of each child, and established a presumption that children should be retained in the community under the supervision of the juvenile court. With time came also the creation of an organizational infrastructure (paid probation staff, court psychiatric clinics, foster care, mother’s pensions, and specialized residential placements) that simultaneously brought to the court both greater resources and greater legitimacy. Although transfer to criminal court became established practice, juvenile court judges waived only a tiny proportion of the young people brought before them.

6.2 1960s–1990s: Crisis and Change

In the ensuing years, idealistic visions of individualized assessment and benign and effective treatments fell far short of being realized. The lack of procedural safeguards for children, and the broad scope of the court’s authority over delinquent and pre-delinquent youth – viewed as essential to the child-saving mission – led to arbitrariness and abuses of power. Probation and institutional corrections programs were chronically understaffed, and their personnel were poorly paid and poorly trained (President’s Commission on Law Enforcement and the Administration of Justice 1967). The plight of juvenile offenders was finally revealed in the 1960s and early 1970s, when the juvenile court came under the scrutiny of the United States Supreme Court in a series of cases that brought about a “due process revolution.” In re Gault (1967, p. 87) – by far the most celebrated of these cases – the Supreme Court admonished that “Under our Constitution, the condition of being a boy does not justify a kangaroo court”. It extended to children a right to counsel, a privilege against compelled self-incrimination, a requirement that proof of guilt be established “beyond a reasonable doubt,” and other rights associated with the adversarial adult system. In the wake of these decisions, juvenile court proceedings began to look a lot like their criminal court counterparts.

In the 1970s, another challenge to juvenile justice appeared, this time from the academic community. A series of negative appraisals of juvenile treatment programs was published (e.g., Lipton et al. 1975; Wright and Dixon 1977; Sechrest et al. 1979), prompting what has been called “the decline of the rehabilitative ideal”. Other researchers countered that negative assessments reflected methodological flaws in the research, weak evaluation designs, and poor program implementation, rather than the absence of viable treatment methods (e.g., Palmer 1991; Lipsey 1992; Fagan and Forst 1996), but these responses drew little attention. The interventionist rationale for the juvenile court was seriously undercut.

Capping the trends that led to a transformation in juvenile justice policy in the last 20 years was a surge in juvenile violence that began in the mid-1980s and extended through the early 90s. There was a virtual explosion of youth gun violence, much of it committed by young minority males in the nation’s largest cities. The media responded to this violence with very heavy and sensationalized coverage. Media portrayals of young offenders also shifted sharply: the traditionally rather benign images of needy but redeemable juvenile offenders gave way to menacing portraits of savvy, cruel, and remorseless adolescent “superpredators,” who were forecast to increase in numbers to 270,000 by the year 2010 (DiIulio 1995). DiIulio (1995, p. 23) claimed that “Americans are sitting atop a demographic crime bomb.”

What ensued was a “moral panic” that politicians used to their advantage. Electoral politics began to revolve around efforts to outdo one’s opponents in the race to “get tough” on juvenile crime. The underlying assumptions about youth that had animated the juvenile court movement were sharply challenged. Conceptions of juvenile offenders as adult-like, incipient career criminals legitimized a different set of penal responses. For young offenders who did not even approach “worst cases,” legislators touted the utility of criminal punishment both as a deterrent and as a means of protecting a fearful public. What followed was an unprecedented series of transfer reforms.

6.3 The Criminalization of Juvenile Justice

Beginning in the 1980s, juvenile justice policy in the USA dramatically shifted away from the parens patriae mission to nurture miscreant youths, replaced by schemes in which punishment played an increasing role (Torbet et al. 1996). Loss of faith in the distinctiveness of youth – indeed, the near convergence of adolescence and adulthood – legitimated the criminalization of delinquency.

Historically, youth could be transferred to criminal court only if the juvenile court judge determined, after a full investigation and an adversarial hearing, that the child posed too much of a danger to the public or was no longer amenable to treatment in the juvenile justice system. With the increases in youth crime in the 1980s and the ensuing panic over superpredators, legislatures in the federal jurisdiction and every state save one responded by altering their laws to expedite the removal of young offenders to criminal court. Because juvenile court judges were perceived to be too conservative in the application of juvenile waiver proceedings, alternative procedures were established that either stripped juvenile court judges of their responsibility for transfer decisions or that sharply restricted their discretion.

In many states, authority to choose the forum in which a case would be tried was shifted to the prosecutor, who was permitted to make transfer decisions without a formal hearing or any possibility of review. Many states also statutorily excluded certain (most often violent) crimes or offense/prior record combinations from juvenile court jurisdiction, quite without regard to the offender’s age. In some states, this meant that children as young as ten would automatically be tried as adults. Juvenile court judges’ hands were tied by other statutes that created mandatory or presumptive waiver. The effects of all of these revisions were amplified by the creation of “once an adult, always an adult” provisions, which required that youths who had been transferred be treated as adults for any subsequent offenses, no matter how minor. Finally, some states lowered the minimum age of criminal court jurisdiction, in effect transferring all youths of a given age to criminal court for prosecution and punishment as adults. As a result of all these changes, it is estimated that approximately 200,000 offenders under 18 are tried in American criminal courts annually, many of whom are neither particularly serious nor particularly chronic offenders, and some of whom are not yet in their teens.

A summary of The Criminalization of Juvenile Justice is presented in Table 6.1. There we see that, for purposes of the criminal law, 12 jurisdictions have set the boundary of “adulthood” at an age lower than 18.² In ten states, all juveniles are considered adults at their 17th birthdays. In two, they become adults when they turn 16. Remarkably, only one state prohibits transfer of offenders under age 15; 22 set the minimum age at 14 or 15. In 27 states, even pre-teens are eligible for adult prosecution.

Table 6.1 Facts about transfer in the USA

Today, only one state continues to rely exclusively on judicial waiver. All the rest permit or require youths to be removed from juvenile court jurisdiction without investigation or review of the need for transfer. Fifteen states have instituted mandatory waiver. Twenty-nine exclude certain offenses from juvenile court jurisdiction by statute. In 15 states, prosecutors may choose which cases shall be tried in criminal and which in juvenile court. Thirty-four states have adopted “once an adult, always an adult” provisions. And more than half the states have also adopted “blended sentencing,” which provides for a combination juvenile–adult sentence. At the extreme, the juvenile court in Texas is authorized to sentence youths to up to 40 years in the state penitentiary.

Sentences imposed on youths who are convicted in criminal court are not mitigated by virtue of the offender’s age. Indeed, research shows that the sentences adolescents receive are harsher than those imposed on comparable adult defendants. Even extreme penalties are not deemed to be inconsistent with youth. Until the Supreme Court’s decision in Roper v. Simmons (2005), the death penalty could be imposed on offenders as young as 16. And today, in contravention of the U.N. Convention on the Rights of the Child,³ at least 2,225 individuals are serving sentences of life without possibility of parole for offenses they committed as juveniles (Human Rights Watch, Amnesty International 2005). ⁴ Only three other countries (none in Europe) permit such sentences, and they have been imposed in only about a dozen cases (Human Rights Watch, Amnesty International 2005, p. 5). On the world stage, the USA stands alone by virtue of the harshness with which it responds to its juvenile offenders.

In sum, over the past two decades, the United States has embraced “get tough” policies that expand the reach and bite of transfer laws and increase the punitive powers of juvenile courts. Ideological, jurisdictional, and procedural transformations have promoted the substantive and procedural convergence of the juvenile and adult systems. This convergence has been supported by a loss of confidence in rehabilitation and, more important, by challenges to the basic ideas of youthful immaturity and malleability that provided the critical jurisprudential underpinnings of the juvenile court.

6.4 Towards a Revitalized Juvenile System and Reversal of Transfer Reforms

Despite the punitive policy reforms of the last two decades, I argue that the substantive rationale for the juvenile court is stronger today than ever before. We no longer need to rely on a vague “mathematics of maturity” grounded in politics and popular opinion to justify a separate system of juvenile justice. Advances in neuroscience, developmental psychology, and criminological research provide a strong rationale for a juvenile justice system that is resistant to threats of encroachment by the criminal justice system. These advances support the following conclusions:

• Adolescents are less culpable than adults. On grounds of fairness, they should not be held to adult standards of responsibility.

• Transfer to the criminal justice system exacerbates the risk of recidivism. On utilitarian grounds, it cannot be justified except in the most exceptional of circumstances.

6.4.1 On Account of Their Immaturity, Adolescents Are Less Culpable Than Adults and Should Not Be Held to Adult Standards of Responsibility

In the past 20 years, significant advances have been made in our understanding of adolescence. Especially relevant is the body of research on changes that take place in qualities of decision-making and judgment as youths make their way through adolescence to the early adult years. Breakthroughs have been made in our understanding of cognitive differences (differences in reasoning and understanding) between adolescents and adults, and psychosocial differences – differences in social and emotional functioning that affect the exercise of these cognitive capacities (Cauffman and Steinberg 2000a). Although, to be sure, there is wide variation among individuals, it can generally be said that “individuals at the point of entry into adolescence are very different than are individuals who are making the transition out of adolescence” (Steinberg and Cauffman 2000, p. 383).

Cognitive Development:Legislators and the general public tend to greatly overestimate adolescents’ cognitive maturity. Although laboratory research indicates that by about the age of 14 or 15 adolescents know right from wrong and have the ability to process information and to make decisions that is roughly equal to that of adults, it does not follow that youths should be held to adult standards of criminal responsibility. Laboratory research findings can be misleading. All subjects have the benefit of the same information, and the research setting is most often relaxed, unhurried, quiet, and free of distractions. As a consequence, laboratory research depicts cognitive performance under ideal conditions, which may bear little relation to decision-making in the real world. As Scott and Steinberg (2003, p. 812 f.) explain, “findings from laboratory studies are only modestly useful…in understanding how youths compare to adults in making choices that have salience to their lives or that are presented in stressful unstructured settings (such as the street) in which decision makers must rely on personal experience and knowledge.”

In the real world, people base decisions and judgments on the information they possess. Unlike the laboratory, where all subjects have the same information, people in the real world have acquired, through education and experience, different amounts of information about what options are available, and the nature and consequences of those options. Decision-making is generally better when we have the benefit of previous experience, particularly if the kind of decision we are called on to make is one that we have made before. In the words of Professor Zimring (2005, p. 17), “Being mature takes practice.” Thus, despite the fact that their capacities for understanding and reasoning may be equal to adults, by virtue of their relative lack of education and experience, teens are less likely than adults to be cognizant of all of their options, to recognize and appreciate the consequences of the alternatives, and to weigh the costs and benefits of the alternatives in ways that produce positive outcomes.

In addition to cognitive development, psychosocial factors are also influential in the exercise of good judgment. Psychosocial factors refer to things such as risk perceptions, time perspective, and responsiveness to others that influence our preferences and, ultimately, the decisions that we make. Researchers have identified multiple psychosocial factors that are especially salient during the teen years, and which contribute to the characteristic immaturity of adolescent decision-making. Psychosocial development lags behind cognitive development – it continues to develop throughout adolescence and into the early adult years – and it appears to have a biological base. Before turning to a discussion of those psychosocial factors believed to be most important to the adolescent years, we take a brief excursion into the biological roots of psychosocial development.

Neuropsychological Research:Advances in neuroscience have produced an exciting new body of knowledge which reveals significant differences in the psychosocial maturity of adolescents and adults that are rooted in biochemical structures and processes of the brain. Research has focused especially on two areas of the brain. One involves the limbic and paralimbic regions, which are sensation- and reward-seeking areas of the brain that are activated by external stimuli (Brownlee 1999). The other region of the brain that is especially important to judgment and decision-making involves the prefrontal and parietal cortices. This region is often described as the “executive” or “cognitive control” center because it is the portion of the brain that is responsible for foresight, planning, strategic thinking, and self-regulation (Dahl 2004; Giedd 1999; Goldberg 2001; Sowell et al. 2001; 2002 ). Importantly, the frontal region regulates the expression of impulses emanating from the limbic region.

Development of the executive center of the brain occurs gradually, and is generally not complete until people reach their early twenties.⁵ This means that even though young people may have developed adult-like capacities for understanding and reasoning by mid-adolescence, they do not acquire adult-like capacities for regulating their impulses until much later.

For reasons that are not entirely clear, the limbic regions become more easily aroused and more active with the onset of puberty. Both the intensity and lability of mood that we associate with adolescents are presumably manifestations of this change in functioning. The limbic system of adolescents is often bursting with emotions and impulses. The frontal lobes do not keep pace, but continue to develop at a much slower rate. Consequently, during the period between the onset of puberty and the maturation of the frontal cortices some 8–10 years later, individuals frequently have considerable difficulty modulating their emotions. When teens are emotionally aroused (e.g., in the company of friends, on dates, in situations of stress or excitement or danger), the executive center of their brains is not able to effectively rein in their impulses. This may account for the high rate at which teens make poor judgments, e.g., to drive after drinking, to engage in unprotected sex, to ride a motorcycle without a helmet, and to engage in other risky behaviors. Adolescents may understand the risks, but they do not have the tools to self-regulate. As neuroscientist Debra Yergulon-Todd explains, “[g]ood judgment is learned…[and] you can’t learn it if you don’t have the necessary hardware” (Brownlee 1999). Adolescents are simply not equipped to respond to stressful situations in the same ways as adults: They see fewer options, their time perspective is shortened, and their ability to foresee more distal consequences is limited (Mulvey and Peeples 1996). At other times, when they are not in a state of emotional arousal or stress – conditions more akin to the experimental laboratory setting – the reasoning and planning capacities of their brain can work more effectively. It is only in the early twenties, when frontal lobe development “catches up,” that individuals reach mature adulthood and are better able to check emotions and impulses. It is then that they become less likely to “act without thinking” or to engage in risky and thrill-seeking behaviors, and more capable of delaying gratification, resisting external pressures, and channeling negative emotions in constructive ways. Gur sums up the neuroscientific evidence nicely when he says: “The evidence is strong that the brain does not cease to mature until the early twenties in those relevant parts that govern impulsivity, judgment, planning for the future, foresight of consequences, and other characteristics that make people morally culpable…. Indeed, age 21 or 22 would be closer to the ‘biological’ age of maturity” (Gur 2002).

Psychosocial Development:In the past 20 years, especially through the work of the MacArthur Research Network on Adolescent Development and Juvenile Justice, developmental psychologists have identified psychosocial factors that contribute to the immature and impetuous character of much adolescent decision-making. In many instances these nonbiological aspects of development can be linked to and may interact with biological underdevelopment of regulatory controls. Although different scholars give these factors somewhat different labels, the following four categories capture them fairly well: (1) susceptibility to external influence, (2) risk orientation, (3) time orientation, and (4) impulse control (e.g., Scott and Steinberg 2003, p. 813 ff.). I briefly discuss each one below.

Susceptibility to External Influence:Scientific research confirms popular wisdom that adolescents are very much influenced by their peers. As part of the transition from dependence on the family of origin to independent adult living, adolescents spend a great deal of time in the company of peers, and much of their behavior – including most delinquent behavior – is committed in groups. Adolescence is also a time of identity development, and peers often provide the contexts in which teens “try out” new identities. Teens frequently imitate friends’ speech, clothing, hairstyles, and other behaviors to gain acceptance and approval, and as symbols of friendship and belonging. Peers also influence one another more directly, sometimes pressing each other to engage in risky behaviors. There is considerable research evidence that, in the company of peers, the probability of engaging in risky behaviors is amplified: the desire for peer approval and fear of ridicule and rejection prompt teens to engage in acts that they would not commit alone (Warr 2002). Gardner and Steinberg (2005) recently demonstrated the effects of peers on risky behaviors in a laboratory study in which subjects played a video driving game of “Chicken” both alone and with friends. Subjects had to decide what to do when they approached an intersection where the signal light had turned yellow – either stop the car safely or try to beat the red light and risk a crash. The researchers found that the presence of peers more than doubled the risks taken by 13–15-year-olds, while it had a lesser effect on 18–22-year-olds, and no effect at all on those aged 24 and older. (It should be noted that these patterns of peer influence correspond closely to the course of development of the executive center of the brain.)

Risk Orientation: Perhaps in part because of the hyperactivity of their limbic systems, adolescents are more likely than adults to engage in risky behaviors (e.g., delinquency, unprotected sex, smoking, drinking), and, as we have just seen, the probability of engaging in risky behaviors is magnified when young people are in the company of peers. Furby and Beyth-Marom (1992) suggest that, relative to adults, youths give insufficient consideration to consequences, amplify rewards, minimize risks, and frequently perceive themselves as invulnerable to negative outcomes – the “personal fable” (“It may happen to others, but it won’t happen to me.”).

Time Orientation:Faced with a situation that calls for a decision, adolescents tend to give more consideration to short-term consequences, and less to long-term ones. Partly due to their lesser life experience, their time perspective is more limited than that of a typical adult. Furthermore, in the analysis of costs and benefits, they tend to discount whatever long-term consequences they do see. As a result, they tend, more so than adults, to opt for immediate gratification – e.g., postponing their homework to hang out with friends, spending their money now on things that they will forget about in a week instead of saving for something that will be much more meaningful. As most parents who have weathered the teen years know, adolescents tend to need things “this minute” and urgently (“I’ve simply got to have it.”).

The foreshortened time perspective of adolescents is also implicated in their involvement in delinquency. Before committing crime, delinquent youths seldom consider the prospect of being caught and incarcerated, or the length of time they might be incarcerated. When they are sentenced to a term of years, it is difficult for them to project what that will mean in terms of life opportunities and life experiences forgone. The perceived difference between a sentence of 5 years and 10 years is a lot less meaningful to a teen than to an adult. Temporal perspective, then, may have important implications for differences in the extent to which adolescents and adults can be deterred by threats of legal sanctions.

Impulse Control:Compared to adults, young people have lesser ability to restrain their impulses. For reasons related in part to limbic system arousal, they experience emotional urges more intensely, and the underdevelopment of the frontal lobes means that they have lesser capacity to restrain these urges or divert them into prosocial outlets. There are additional psychosocial reasons for youths’ impetuosity. They lack experience that would help them to think before acting, they are subject to pressures to act from peers, and their identities are still forming and fragile. Consider, for example, that for young boys, adolescence is the stage when there is a major focus on masculine identity. It should not be surprising that challenges to identity – insults, slurs on a boy’s reputation for toughness – are often the triggers for episodes of impulsive violence (e.g., Fagan and Wilkinson 1998). When situations are stressful and emotions are high (“hot cognitions”), adolescent judgment is severely impaired relative to the situation of “cold cognitions,” where emotions are calm and consequences are more readily apparent and considered. When cognitions are hot, adolescents are less sensitive to contextual cues that might temper their decisions.

These observations are borne out by a recent national study that compared nearly 1,000 adolescents and several hundred adults in their decision-making capacities as trial defendants. It was found that 16-year-old adolescents were less responsible, had less perspective (ability to consider different viewpoints and broader contexts of decisions), and were less temperate (able to limit impulses and evaluate situations before acting) than the average adult. It was not until age 19 that improvements in “judgment” reached adult levels (Cauffman and Steinberg 2000b).

6.4.2 Transfer to the Criminal Justice System Exacerbates the Risk of Recidivism and Cannot Be Justified Except in the Most Exceptional of Circumstances

Prompted in large measure by the widespread transfer reforms, over the past 10 to 15 years criminologists have conducted several studies for the purpose of assessing the comparative effectiveness of juvenile vs. criminal court processing of adolescent defendants. To date, seven studies have been carried out in demographically diverse jurisdictions, over a substantial time period, and using very different methodologies (Bishop et al. 1996; Fagan 1996; Fagan et al. 2007; Lanza-Kaduce et al. 2002; 2005; Myers 2001; Podkopacz and Feld 1996; Winner et al. 1997). Some of the studies have used fairly weak research designs while others are methodologically sophisticated. Regardless of the methodology used, all have produced very similar results. Such consistency of findings is rather unusual for social science research and gives us greater confidence in the findings.

Briefly stated, the research shows that young people who are transferred to criminal court for prosecution and punishment as adults are more likely to re-offend than equivalent young offenders who are processed in the juvenile court system. Transferred offenders re-offend more quickly, at higher rates, and commit more serious crimes than their counterparts who are retained in the juvenile system. These ill effects are especially pronounced among violent offenders and among first offenders (those most often targeted by automatic transfer laws) (Bishop et al. 1996; Fagan 1996; Lanza-Kaduce et al. 2002; 2005). Importantly, the negative effects of transfer are found among those who receive sentences in the community (e.g., adult probation) as well as those who are incarcerated in adult jails and prisons, although these effects are exacerbated among those who are incarcerated (Fagan 1996; Fagan et al. 2007). A recent review of this body of research conducted by the national Centers for Disease Control (CDC) reported that the overall median effect across studies was “a 34% relative increase in subsequent violent or general crime for transferred juveniles compared with retained juveniles” (CDC 2007, p. 7). The CDC report concluded that “transferring juveniles to the adult system is counterproductive as a strategy for preventing or reducing violence” (CDC 2007, p. 8).

The explanation for these rather robust findings remains unclear. However, we have quantitative data on juvenile and adult correctional institutions that provide some insights into the ways in which the juvenile and adult systems differ. When combined with qualitative research on young people in the juvenile and adult systems, we can begin to identify sources of negative effects. In the early 1980s, Forst et al. (1989) interviewed 140 adolescent male offenders in four states, all of whom had been convicted of serious violent crimes. Fifty-nine had been processed in juvenile courts and confined in training schools while the rest had been transferred and incarcerated in prisons. More recently, Bishop and her colleagues (Bishop et al. 2000; Lanza-Kaduce et al. 2002) interviewed 150 serious and chronic adolescent male offenders in Florida, half of whom had been transferred to criminal court and confined in state prisons, the balance of whom had been prosecuted in juvenile court and incarcerated in “maximum risk” juvenile commitment facilities. Still more recently, members of the MacArthur Foundation Research Network interviewed matched samples of adolescent inmates who were confined in juvenile correctional facilities in New Jersey and California, and adult institutions in New York and Arizona (N = 425). All three studies found that adolescents had quite different experiences in and reactions to the juvenile and criminal justice systems. Taken together, they suggest that the criminogenic effect of the criminal justice system is related to exposure to harsh and dispiriting conditions in adult prisons and to formidable problems of reintegration.

Official records data indicate that youths who are sentenced to incarceration by the criminal courts most often serve their sentences in adult correctional facilities where they are housed together with the general population of adult inmates (31 states), with youthful offenders up to age 21 or 25 (7 states), or some combination of the two (5 states) (Library Information Specialists 1995). Prison inmates are older, more often violent, and often have lengthy criminal histories and prior experiences with incarceration. Consequently, when juveniles are transferred to criminal court and institutionalized with adults, they are exposed to an older, more seasoned and more violent group of offenders over an extended period.

Official data also reveal organizational differences between juvenile and adult institutions. Adult facilities tend to be much larger than juvenile ones. The average daily population in institutions for adults is 700, compared to approximately 70 in juvenile facilities. And staffing patterns differ markedly in the two systems. Given their larger size, prisons must accord a much higher priority to security concerns: Nationally, two thirds of the personnel in adult correctional facilities are custody or security staff, and the ratio of security staff to inmates is 1:4 (BJS 1997). In contrast, the ratio of security staff to inmates in juvenile institutions is 1:11 in training schools, and much higher still in smaller residential placements (Parent et al. 1994). Additionally, there are many more opportunities for counseling, education and training by professional staff in juvenile correctional facilities.

Qualitative research indicates that adult prisons are rather like warehouses. Their core mission is custody, not treatment. Youths in adult correctional facilities are much less likely to receive counseling and other therapeutic services, education, or vocational training. They have much idle time which is spent in the company of older, more seasoned inmates at a critical period in adolescent identity development. The Florida researchers reported that in the institutional world of the adult prison, youths were more likely to learn social rules and norms that legitimated domination, exploitation, and retaliation. Youths routinely observed both staff and inmate models who exhibited these behaviors and reinforced illegal norms. Others in the inmate subculture taught them criminal motivations as well as techniques of committing crime and avoiding detection. The Florida researchers also reported that prison staff engaged in negative shaming: Custodial staff most often treated inmates with disdain and hostility, and clearly communicated messages that youths were irredeemable and incapable of change.

The Florida researchers also found that relations between staff and youths in juvenile correctional institutions were most often described in very positive terms. The general sense of youths’ comments was that most staff cared for them and believed in their potential to become productive and law-abiding adults. Staff was credited with being skilled at modeling and teaching appropriate behaviors, and providing helpful guidance about personal matters. To be sure, some staff were described as having little interest or concern for youths. However, only a small fraction of staff in juvenile institutions were characterized in this way. Similarly, Forst et al. (1989) found that, compared to staff in prisons, staff in juvenile facilities were more involved in counseling, more concerned about youths’ adjustment, more encouraging of their participation in programs, more helpful in assisting them to understand themselves and deal with their problems, and more facilitative of improved relationships with their families. Juvenile program staff was also rated significantly more highly than prison staff in terms of helping youths to set and achieve goals, to improve relationships with peers, to feel better about themselves, and to acquire skills that would be useful upon release.

Both Forst et al. (1989) and the Florida researchers found that juvenile facilities were generally organized around a therapeutic model – most often, a cognitive–behavioral one – which provided core principles that governed staff behavior and staff–resident interactions. Staff in juvenile programs were expected to model self-discipline, social skills, and strategies for problem-solving and impulse control. Even line staff was trained in treatment methodologies and were expected to integrate them into daily activities on a more-or-less ongoing basis. Significant incentives for staff – salary enhancements and promotions – were linked to therapeutic skills.

All three studies reported a stronger treatment orientation in juvenile institutions compared to adult ones. Programs in juvenile institutions addressed mental health needs, learning deficits, and social skills deficits, and were designed to facilitate adolescent development (social competencies, prosocial identity, decision-making, planning). According to the MacArthur research group, in terms of youth’s ratings of fairness, counseling and therapeutic services, educational and job training services, and program structure, adult correctional facilities fared significantly worse than juvenile ones. They also reported that organized gangs were the dominant social group in adult prisons, while loosely organized groups of peers dominated in juvenile facilities; that youths in adult correctional facilities experienced a greater sense of danger, and that those confined in adult facilities had significantly higher rates of depression, and scored significantly more poorly on measures of overall levels of mental health functioning than youth in juvenile correctional institutions.

Those who are transferred to the adult system also must deal with the greater stigma that attaches to a criminal conviction. This is true of those who are placed on probation in the community as well as those who are sentenced to incarceration. Felony convictions must be reported on employment applications, making it more difficult to obtain jobs. Those convicted of felonies in adult court are barred from military service and many other forms of public employment. They may be denied access to student loans and educational opportunities. They are frequently ineligible for low-cost public housing. They also have more difficulty reintegrating into conventional social networks. Most youths who engage in delinquency will desist from crime by early adulthood as they move into jobs and marriages that give them a sense of place and purpose, while those prosecuted in the criminal justice system carry a stigma that may severely limit legitimate work and social opportunities, and impair their life chances for a very long period of time. Stigmatization and obstruction of conventional opportunities certainly make re-offending more likely.

In sum, the factors contributing to the criminogenic effects of transfer are complex and include the multiple negative effects of incarceration in the adult system (e.g., exposure to negative shaming, opportunities for criminal socialization, modeling of violence) and the stigmatization and opportunity blockage that flow from a record of criminal conviction. Compared with the criminal justice system, the juvenile system is more reintegrative in practice and effect.

6.5 Implications for Policy

On grounds of both fairness and practicality, then, juvenile offenders are best retained in the juvenile justice system, which is better equipped to respond to adolescents in ways that promote positive youth development. Neuroscientific research and research in developmental psychology clearly support the conclusion that, except in rare cases, it is inappropriate to hold adolescents to adult standards of criminal responsibility. Significant legal support for this conclusion was recently provided by the United States Supreme Court in the case of Roper v. Simmons (2005). In that case, the Supreme Court banned capital punishment for persons who were under the age of 18 at the time of their offenses. In assessing the constitutionality of the death penalty, the Supreme Court inquired whether such a penalty was consistent with “evolving standards of decency.” It looked at the states and at international standards – including the International Convention on the Rights of the Child – and concluded that the death sentence for minors is inconsistent with contemporary notions of decency. The Court also ruled that the death penalty is a disproportionate sentence for minors. The Court accepted neurobiological and social science evidence of the immaturity of adolescents, their greater susceptibility to external pressure, and their greater capacity for change. The linchpin of the Court’s decision was that these differences between youths under 18 and adults render youths less culpable than adults. Although the decision in Roper was a narrow one that applies only to cases involving capital punishment, the logic of the Court’s opinion arguably extends beyond such cases and is consistent with the view that few offenders under 18 deserve to be treated as adults.

Beyond considerations of fairness, research also supports the conclusion that, on utilitarian grounds, expansive transfer policies are both imprudent and harmful. Instead of deterring young offenders, it appears that prosecution and punishment as an adult is criminogenic. Compared to retention in the juvenile system, transfer has deleterious effects on youths to whom it is applied and only increases the risk to public safety. When transfer statutes are applied broadly, incapacitative gains reaped in the short run are quickly nullified over the long term.

Because young people generally do not achieve adult-like maturity until their late teens or early twenties, a more fair and rational policy would set the lower limit of criminal court jurisdiction at age 18 (or even 21) and would severely restrict the transfer to criminal court of youths who have not reached that boundary. For offenders under that age limit, transfer should not be permissible in the absence of a careful psychosocial assessment and a determination that a young defendant possesses the requisite cognitive and psychosocial maturity to be held to adult ­standards of responsibility. To ensure that the application of transfer law is properly restricted, it is essential that responsibility for transfer be returned to juvenile judges in a system of discretionary waiver. Legislative exclusion statutes, mandatory waiver laws, and prosecutorial transfer provisions need to be repealed.

There is much to be said for the idea of raising the age of the juvenile court’s continuing jurisdiction to age 24. Such a course would remove much of the incentive to transfer youths who are nearing the current upper limits of the juvenile court’s continuing jurisdiction (usually 18, or 21) and would enhance the prospects of rehabilitation in intensive, long-term treatment programs while young people are still going through periods of significant neuropsychological development.

Sound juvenile justice policy would also include a focus on “evidence-based treatment,” and would ensure that juvenile correctional programs are well funded. Meta-analyses of program evaluations have identified many effective programs, some of which, when staffed appropriately and implemented well, can substantially reduce the risk of re-offending, even among serious and violent offenders (Lipsey and Wilson 1998). These programs focus on building social skills, enhancing educational and vocational competencies, improving interpersonal relationships, and other aspects of positive youth development.

These policy recommendations are not beyond reach. There are many signs that the pendulum of juvenile justice policy has begun to swing away from the “get tough,” punitive approach to children and adolescents that has defined American juvenile justice for the past two decades. For example, a national poll of American voters conducted in 2007 showed that 90% of respondents are concerned about youth crime, but that an equal proportion support rehabilitative services and treatment (Krisberg and Marchionna 2007). Eighty percent believe that spending tax dollars on enhanced rehabilitation services is cost-effective, while nearly three quarters feel that incarcerating juveniles in adult correctional facilities only promotes further crime. Two thirds of those polled oppose the incarceration of persons under 18 in adult jails and prisons. These results are consistent with those of numerous other state polls, and should be considered by lawmakers whose preferences are too often guided by media accounts of high-profile juvenile crimes and the short-lived fear-driven pressures to toughen penalties that they tend to engender. Elected representatives need to know that they can support treatment of serious offenders in the juvenile justice system without jeopardizing their chances of re-election (Nagin et al. 2006).

There are other hopeful signs of change. Research on adolescent brain development and on the negative consequences of transfer has received considerable publicity. So too has the decision in Roper v. Simmons. The heavy financial burden associated with maintaining the nation’s overcrowded adult jail and prison facilities has also produced an openness to change. Taken together, these developments have already prompted some legislators to soften their approach to youth crime. Last year the Connecticut legislature raised the age of criminal court jurisdiction from 16 to 18, and the North Carolina legislature has recently ordered a study of the feasibility of doing the same. Florida, which led the nation in transfers just a few years ago, has reduced their number by more than two thirds. At the same time, the legislature provided substantially increased funding for juvenile treatment programs and adopted an evidence-based approach to juvenile programming.

In 2006, the Colorado legislature abolished sentences of life without possibility of parole for juveniles, and legislatures in several other states are considering similar steps. In several states, legislation that excluded drug offenses from juvenile court jurisdiction has been repealed. And, led by the MacArthur Foundation – which has been responsible for funding much of the research on adolescent development –, four states have been identified as sites for Models for Change, an effort to develop more effective and developmentally appropriate juvenile justice systems. Although it is too soon to tell whether the tide has turned, there are signs that support for progressive reform consistent with foundational principles of the juvenile court is gaining momentum.

6.6 Cases Cited

In re Gault, 387 U.S. 1 (1967).

Roper v. Simmons, 543 U.S. 551 (2005).