Juvenile Crime and Punishment
 
Article retrieved from InfoTrac Web: General Reference Center Gold.

 
Original Source:  USA Today (Magazine), Jan 2001 v129 i2668 p34.
 
Title:  Should Juvenile Offenders Be Tried as Adults?(rehabilitation at
            issue)
Author:  LAURENCE STEINBERG
 
Subjects:  Rehabilitation of juvenile offenders - Psychological aspects
            Imprisonment - Psychological aspects
            Juvenile offenders - Psychological aspects
Locations:  United States
 
Electronic Collection:  A69698409
                   RN:  A69698409
 

Full Text COPYRIGHT 2001 Society for the Advancement of Education

"... Transferring juveniles into a criminal justice system that precludes a
rehabilitative response may not be very sensible public policy."

FEW ISSUES challenge a society's ideas about the natures of human development
and justice as much as serious juvenile crime. Because people neither expect
children to be criminals nor expect crimes to be committed by them, the
unforeseen intersection between childhood and criminality creates a dilemma
that most of us find difficult to resolve. The only way out of this dilemma is
either to redefine the offense as something less serious than a crime or to
redefine the offender as someone who is not really a child.

For the past 100 years, American society has most often chosen the first
approach. It has redefined juvenile offenses by treating most of them as
delinquent acts to be adjudicated within a separate juvenile justice system
that is theoretically designed to recognize the special needs and immature
status of young people and emphasize rehabilitation over punishment. Two
guiding beliefs about young people have prevailed: first, that juveniles have
different competencies than adults (and therefore need to be adjudicated in a
different type of venue); and second, that they have different potential for
change than adults (and therefore merit a second chance and an attempt at
rehabilitation). States have recognized that conduct alone--that is, the
alleged criminal act--should not by itself determine whether to invoke the
heavy hand of the adult criminal justice system.

In recent years, though, there has been a dramatic shift in the way juvenile
crime is viewed by policymakers and the general public, one that has led to
widespread changes in policies and practices concerning the treatment of
juvenile offenders. Rather than choosing to define offenses committed by youth
as delinquent, society increasingly is opting to redefine them as adults and
transfer them to the adult court and criminal justice system.

Most reasonable people agree that a small number of young offenders should be
transferred to the adult system because they pose a genuine threat to the
safety of other juveniles, the severity of their offense merits a relatively
more severe punishment, or their history of repeated offending bodes poorly
for their ultimate rehabilitation. However, this does not describe the tens of
thousands of young people who currently are being prosecuted in the adult
system, a large proportion of whom have been charged with nonviolent crimes.
When the wholesale transfer to criminal court of various categories of
juvenile offenders starts to become the rule rather than the exception, this
represents a fundamental challenge to the very premise that the juvenile court
was founded on--that adolescents and adults are different.

[Graphic omitted]There are many lenses through which one can view debates
about transfer policies. As a developmental psychologist, I ask whether the
distinctions we draw between people of different ages under the law are
sensible in light of what we know about age differences in various aspects of
intellectual, emotional, or social functioning. More specifically, on the
basis of what we know about development, should a boundary be drawn between
juveniles and adults in criminal matters and, if so, at what age should we
draw it?

Developmental psychology, broadly defined, concerns the scientific study of
changes in physical, intellectual, emotional, and social development over the
life cycle. Developmental psychologists are mainly interested in the study of
"normative" development. My concern is whether the study of normative
development indicates that there are scientific reasons to warrant the
differential treatment of young people and adults within the legal system,
especially with regard to the age period most under current political
scrutiny--the years between 12 and 17.

First, this age range is an inherently transitional time. There are rapid and
dramatic changes in individuals' physical, intellectual, emotional, and social
capabilities. If there is a period in the life span during which one might
choose to draw a line between incompetent and competent individuals, this is
it.

Second, adolescence is a period of potential malleability. Experiences in the
family, peer group, school, and other settings still have a chance to
influence the course of development. To the extent that malleability is
likely, transferring juveniles into a criminal justice system that precludes a
rehabilitative response may not be very sensible public policy. However, to
the extent that adolescents' amenability is limited, their transfer to the
adult system is less worrisome.

Finally, adolescence is a formative period during which a number of
developmental trajectories become firmly established and increasingly
difficult to alter. Many adolescent experiences have a tremendous cumulative
impact. Bad decisions or poorly formulated policies pertaining to juvenile
offenders may have unforeseen and harmful consequences that are very hard to
undo.

It is only fair to ask whether or why a developmental perspective is even
relevant to contemporary discussions of trying juvenile offenders in the adult
criminal system. After all, current discussions about trying juveniles in
adult court are typically not about the characteristics of the offender, but
about the seriousness and harmfulness of the offense--factors independent of
the offender's age or maturity. "Adult time for adult crime"--the mantra of
the get-tough-on-juvenile-crime lobby--says nothing about the age of the
offender, except for the fact that it ought to be considered irrelevant.

I believe that it is logically impossible to make the age of the offender
irrelevant in discussions of criminal justice policy. A fair punishment tot an
adult is unfair when applied to a child who did not understand the
consequences of his or her actions. The ways we interpret and apply laws
should rightfully vary when the case at hand involves a defendant whose
understanding of the law is limited by intellectual immaturity or whose
judgment is impaired by emotional immaturity. Moreover, the implications and
consequences of administering a long and harsh punishment are very different
when the offender is young than when he or she is an adult.

Transferring juveniles to criminal court has three sets of implications that
need to be considered in discussions about whether they should be tried as
adults. First, transfer to adult court alters the legal process by which a
minor is tried. Criminal court is based on an adversarial model, while
juvenile court is based, at least in theory, on a more cooperative model. This
difference in the climates of juvenile vs. adult courts is significant because
it is unclear at what age individuals have sufficient understanding of the
ramifications of the adversarial process and the different vested interests of
prosecutors, defense attorneys, and judges. Young defendants may simply not
have what it takes--by the standards established in the Constitution--to be
able to defend themselves in criminal court.

Second, the legal standards applied in adult and juvenile courts are
different. For example, competence to stand trial is presumed among adult
defendants unless they suffer from a serious mental illness or substantial
mental retardation. We do not know if the presumption of competence holds for
juveniles, who, even in the absence of mental retardation or mental illness,
may lack sufficient competence to participate in the adjudicative process.
Standards for judging culpability may be different in juvenile and adult
courts as well. In the absence of mental illness or substantial deficiency,
adults are presumed to be responsible for their own behavior. We do not know
the extent to which this presumption applies to juveniles, or whether the
validity of this presumption differs as a function of the juvenile's age.

Finally, the choice of trying a young offender in adult vs. juvenile court
determines the possible outcomes of the adjudication. In adult court, the
outcome of being found guilty of a serious crime is nearly always some sort of
punishment. In juvenile court, the outcome of being found delinquent may be
some sort of punishment, but juvenile courts typically retain the option of a
rehabilitative disposition, in and of itself or in combination with some sort
of punishment. This has two significant ramifications: the stakes of the
adjudication are substantially greater and, in juvenile court, offenders
generally are presumed amenable unless the prosecutor demonstrates otherwise.
In adult court, amenability is not presumed, and must instead be shown by the
defendant's counsel.

In other words, decisiomnakers within the juvenile and criminal justice
systems bring different presumptions to the table. The juvenile court operates
under the presumption that offenders are immature, in three different senses
of the word: Their development is incomplete; their judgment is less than
mature; and their character is still developing. The adult court, in contrast,
presumes that defendants are mature, competent, responsible, and unlikely to
change.

Which of these presumptions best characterizes individuals between the ages of
12 and 17? Is there an approximate age where the presumptions of the criminal
court become more applicable to an offender than the presumptions of the
juvenile court? Although developmental psychology does not point to any one
age that politicians and practitioners should use in formulating transfer
policies or practices, it does point to age-related trends in certain legally
relevant attributes, such as the intellectual or emotional capabilities that
affect decisionmaking in court and on the street.

It is appropriate, based on developmental research, to raise serious concerns
about the transfer of individuals 12 and under to adult court, because of
their limited adjudicative competence as well as the very real possibility
that most children this young will not prove to be sufficiently blameworthy to
warrant exposure to the harsh consequences of a criminal court adjudication.
For this reason, individuals 12 and under should continue to be viewed as
juveniles, regardless of the nature of their offense. This does not mean that
we should let them off the hook or fail to punish them. It merely means that
they should be punished and held responsible within a system designed to treat
children, not fully mature adults.

At the other end of the continuum, it appears appropriate to conclude that the
vast majority of individuals older than 16 are not appreciably different from
adults in ways that would prohibit their fair adjudication within the criminal
justice system. My view is that variability among individuals older than 12,
but younger than 16, requires that some sort of individualized assessment of
an offender's competence to stand trial, blameworthiness, and likely
amenability to treatment be made before reaching a transfer decision. The
relevant decisionmakers (e.g., judges, prosecutors, and defense attorneys)
should be permitted to exercise judgment about individual offenders' maturity
and eligibility for transfer.

It is true that a bullet wound hurts just as much when the weapon is fired by
a child as when it is fired by an adult, but this argument is a red herring,
since we comfortably acknowledge that there are numerous situations where
mitigating factors should be taken into account when trying a defendant, such
as insanity, emotional duress, or self-defense. Immaturity is another
mitigating factor. People may differ in their opinions about the extent to
which, the ways in which, and the age at which an offender's maturity should
be considered in court decisions. One person might believe that a boundary
should be drawn at 18, another at 15, and yet another at 13. Nevertheless,
ignoring the offender's age entirely is like trying to ignore an elephant that
has wandered into the courtroom. You can do it, but most people will notice
that something smells foul.

Laurence Steinberg is the Distinguished University Professor of Psychology,
Temple University, Philadelphia, Pa., and director of the John D. and
Catherine T. MacArthur Foundation Research Network on Adolescent Development
and Juvenile Justice.
 
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