In case you are really, really, really, really bored

Here is a paper I wrote yesterday about how juveniles are treated by the criminal justice system, sans footnotes.


If a man have a stubborn and rebellious son, that will not hearken to the voice of his father, or the voice of his mother, and thought they chasten him, will not hearken unto them; then shall his father and his mother lay hold on him, and bring him unto the elders of his city, and unto the gate of his place; and they say unto the elders of his city: “This our son is stubborn and rebellious, he doth not hearken to our voice; he is a glutton, and a drunkard.” And all the men of his city shall stone him with stones, that he may die; so shalt thou put away the evil from the midst of thee; and all Israel shall hear, and fear. From the beginning of modern times, man has struggled with the question of what to do with juveniles when they do something society deems punishable if an adult were to act similarly. Are children the same as adults? Is there something endemic to the juvenile mind that suggests they are not as accountable for their actions as adults are? Our society deems juveniles unable to make many ‘adult’ decisions – smoking, drinking, voting, sexual activity, marriage and gambling to name a few. In the criminal justice context, however, we often consider juveniles able to make rational adult decisions. The present criminal justice system is in an anomalous situation of treating children with a combination of more severe punishment and less due process than at any other time in the history of our laws. This paper will examine the juvenile criminal justice system, explore how juveniles end up in adult prisons, and finally discuss the consequences of locking up our youth.

Anthony Laster was a fifteen-year-old eighth-grader with an IQ of fifty-eight who was described by relatives as having the mind of a five-year-old. One day in 1998, shortly after his mother died, Anthony was hungry, so he reached into the pocket of another student in his Florida middle school and took $2 in lunch money. The boy's family reported the crime to the authorities, and the local prosecutor, Barry Kirscher, decided to prosecute Anthony as an adult. He spent the next seven weeks in an adult jail waiting for his court date. Lionel Tate was a twelve year old boy and very interested in professional wrestling. He imitated one of his favorite wrestlers and caused life-ending injuries to a six-year-old girl. The state tried him as an adult and returned a verdict of life in prison without the possibility of parole. Nathaniel Brazill was thirteen years old when he shot and killed his teacher at a middle school in 2000. His teacher refused to let Nathaniel talk with two girls in the classroom and he claimed his gun accidentally went off. He received a twenty-eight year sentence after a conviction for second-degree murder. Cases like these are becoming more common around the United States due to the ‘tough on crime’ mantra repeated over the last several decades. The U.S. got much tougher on juvenile crime largely because of the surge of juvenile violence during the crack epidemic of the late 1980s and early 1990s. Lawmakers panicked and made juvenile justice far more punitive as an attempt to halt crime. But these new measures came after teenage violent crime rates began to fall dramatically, casting doubt on their legitimacy and effectiveness. This poor response to the problem from lawmakers now has the effect of punishing juvenile offenders more harshly, while the rate of juvenile violence is going down anyway. We therefore are now treating more juveniles as adults even though juvenile crime rates are dropping. But has it always been like this? An examination of the history of the juvenile justice system is necessary to better comprehend where we are today.

As shown in the opening, ideas of juvenile justice go back to biblical times. Jewish law at the time had very strict requirements concerning the adjudication and punishment of juveniles. Confessions, circumstantial evidence and hearsay were inadmissible in criminal cases. Convictions were difficult to obtain, and courts would acquit some factually guilty persons to assure no innocent juvenile would be convicted. America adopted its juvenile justice law in 1646 almost entirely from Deuteronomy. Colonial America was sometimes quite severe with juveniles, sometimes convicting and executing them. Courts frequently showed mercy, though. For example, a court acquitted a twelve-year-old boy from the capital offense of arson in 1792 even though he confessed to the crime. As the nineteenth century arrived, England and America began to mitigate the severity of the punishment for juveniles. The severity of the law was limited by: 1) bringing minor charges against children; 2) refusing to prosecute children; and 3) refusing to convict children. For example, between 1801 and 1836, one hundred three children received death sentences for theft crimes in England, but never for murder. None of the children were executed. America saw a similar practice. Courts rarely convicted juveniles for serious crimes. If they did, the conviction was usually reversed. Only two children were executed in America during the 19th century, and they were both sons of slaves.

The laws themselves protected children in the 19th century. Laws incorporated William Blackstone’s ideas of criminal incapacity of children dating back to 1796. Under these laws, children under seven could never be guilty of a felony; while a child between seven and fourteen was presumed to be incapable, but the presumption could be overcome by the prosecution. Juveniles also had procedural and substantive protections. For example, courts would not admit confessions from juvenile offenders because of their lack of capacity and sophistication. In one case, the New Jersey Supreme Court reversed the conviction of an eleven-year-old slave child for murder. The court noted, “With respect to confessions in general, and especially with respect to infants, it is necessary to be exceedingly guarded.” This look at history shows courts were lenient to juveniles in the 19th century. Courts often considered the fragility of youth and consistently threw out juvenile convictions.

The earliest effort to change the common law treatment of youths came from the House of Refuge movement of the 1820s. The Quakers were the primary proponents of this movement and their motivation came from their discomfort with the prevailing circumstances of poor children in the court system. They felt the legal system trapped juveniles. If a court acquitted them, they would just return to the poor conditions they came from. If not, they would go to jail and live among the adult criminals. While in these adult prisons, children would face horrible conditions. They would face unspeakable atrocities and return to society as hardened criminals. As the system developed, it became clear that housing young offenders and adult prisoners together was self-destructive and self-defeating. Enter the House of Refuge. The Quakers intended it to be a place where juveniles could go in order to prevent future crimes. They did this by separating the children they thought were capable of reformation. The children thought incapable of ‘being saved’ still went to adult prison. This marks the beginning of the practice of separating the ‘good’ and ‘bad’ children that a cursory look shows continues today. This House of Refuge was no vacation for juvenile offenders – they were subject to frequent and severe physical punishment.

Reformatories then emerged to replace Houses of Refuge. The goals of this movement were to segregate young offenders from adult criminals; imprison them for their own good and removing them from bad homes; minimize court proceedings and avoiding due process because incarceration was benevolent; provide indefinite sentences to last until the youth was reformed; and to use punishment only when other alternatives were unsuccessful. They used ideas of military exercise and supervision; used a cottage approach located in rural areas; focused on education with an emphasis on vocational training; and taught sobriety, thrift and industry. Although ostensibly a sound plan, real life application showed no improvement over the Houses of Refuge.

Due in part to the rising practice of jury nullification in trials dealing with juvenile offenders, Illinois passed the nation’s first Juvenile Court Act, leading to forty-six states, the District of Columbia and three territories following suit by 1925. Legislatures intended these courts to have sole jurisdiction over delinquent or neglected youth. The court had jurisdiction over boys until they were sixteen and girls until they turn seventeen. The acts defined a rehabilitative purpose to the system and emphasized the separation of children from adults when incarcerated. Following World War I, the increased training of social workers and development of the social work case-method shifted the focus from the treatment of delinquent children as a ‘group’ to the treatment of each delinquent as an ‘individual’. The development of government welfare agencies after World War II broadened the scope of services available to each child, resulting in a significant systemic shift to include both the prevention of juvenile delinquency and the rehabilitation of juvenile delinquents in detention facilities. The Supreme Court dealt with the juvenile court system by holding a youth’s due process rights were violated when he was waived to an adult court without a hearing, without giving the youth access to a lawyer for important social information, and without a reason for the lower court’s decision. In the decision the Court said, “While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guarantees applicable to adults. There is evidence, in fact that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults, nor the solicitous care and regenerative treatment postulated for children.”

The Court first applied the 14th Amendment due process clause to juvenile proceedings in 1967. Children and their parents finally had the right to notice of the charges against the child. Children also had the right to counsel, to be advised of the right, and to be appointed an attorney if indigent. The Court also granted the right of cross-examination of any witnesses against the child. Finally, children must be informed of their right of the privilege against self-incrimination. The Court finally recognized juvenile courts are criminal in nature. In 1989, the United Nations adopted the United Nations Convention on the Rights of the Child in order to establish internationally recognized minimum standards for a governments’ treatment of their children. The U.S. was a leader in developing this convention but never ratified it. Therefore it is not binding on American courts.

HOW JUVENILES END UP IN ADULT PRISONS

Juveniles become part of the federal adult criminal justice system through the process of transfer. Transfer hearings in federal courts are governed by the Federal Juvenile Delinquency Act. The Act’s transfer provisions apply to juveniles over the age of fifteen who are charged with either committing a violent crime that would be a felony if committed by an adult, or violating certain narcotics laws. This age lowers to thirteen if the juvenile is charged with a designated crime of violence or was in the possession of a firearm during the commission of the offense. The Act states the government must petition for a transfer hearing and convince a federal judge that transferring a juvenile is in the interest of justice. The interest of justice is when the risk of harm to society posed by affording the defendant more lenient treatment within the juvenile justice system outweighs the defendant’s chance for rehabilitation. The Act requires judges to consider these factors as indicia of rehabilitative potential:

1) Age and social background of the youth; 2) Nature of the alleged offense; 3) The extent and nature of the juvenile’s prior delinquency record; 4) The juvenile’s present intellectual development and psychological maturity; 5) The nature of past treatment efforts and the juvenile’s response to such efforts; and 6) The availability of programs designed to treat the juvenile’s behavioral problems.

The government must introduce evidence regarding all six factors , meaning a prosecutor is not able to simply eschew the factors not favoring transfer. However, Congress did not codify how Courts are to interpret and balance these factors. This has led to broad interpretation, from a court deciding it did not need to find that each factor weights in favor of transfer , to a court weighing each factor equally. Problems of judicial discretion amplify due to an abuse of discretion standard of review for judicial transfer decisions. An appeal claiming abuse of discretion is difficult because the decision, by law, was left to the judge in the first place. It is very unlikely that a court will not apply the correct law or rest its decision on a clearly erroneous finding of a material fact in order to satisfy the abuse of discretion standard.

The Act has a presumption in favor of state jurisdiction over juveniles committing federal offenses. Therefore it is much more common to see juveniles in state, rather than federal courts. Every state has unique criminal laws, so this paper will choose Michigan as a case study. In Michigan, there are two ways to try a youthful offender as an adult. The first is waiver. Traditional judicial waiver applies to children at least fourteen years old and charged with a felony. This provision is rarely used. The prosecution files a petition in the family division of the circuit court and then files a motion requesting the court to waive its jurisdiction to the adult division of circuit court. Next is a two-step process. The court first determines whether there is probable cause to believe that a felony has been committed. Next, the court must determine whether there is probable cause to believe the juvenile charged with that crime committed that crime. After this determination, the court decides if the best interest of the juvenile and the public would be served by granting a waiver of jurisdiction to the court of general criminal jurisdiction. The court must give greater weight to the seriousness of the alleged offense and the juvenile’s prior record of delinquency. It also considers aggravating factors recognized by the sentencing guidelines. Looking at the evolution of juvenile law in Michigan, the law increasingly applies adult legal standards that seek only to punish offenders as opposed to rehabilitate them. The laws themselves have taken much of the ability away from judges to decide cases based on individual circumstances.

A second form of waiver is prosecutorial waiver. Also known as direct file, the prosecutor can file charges with the adult criminal court instead of the juvenile division for anyone over fourteen. The prosecutor has seventeen offenses she can choose from to use this waiver. She can also automatically waive for attempt, conspiracy, solicitation, lesser-included offenses and any violation arising out of the same transaction. The legislature did not codify any guidelines for how a prosecutor is to use her discretion. The prosecutor therefore has complete discretion to charge in any way she wants. Courts have made it clear that they will not seriously examine charging decisions. Regardless of which waiver used, if a child is convicted post waiver, he must serve an adult sentence for most offenses. If the child’s conviction is for possessing a controlled substance, the court must sentence that child to no less than twenty-five years.

The second way to try a child as an adult in Michigan is through a process called designation. According to the designation provision, any child charged with an offense may be tried in the same manner as an adult. Similar to waiver, there are two types of designation. Prosecutorial designation gives a prosecutor the power to try a child under the same procedures and penalties afforded to adults. This literally means the prosecution can try a child of any age for any of the seventeen offenses provided by statute. The only thing the prosecutor must do in order to use this discretion is charge the youth with a specified juvenile violation. There are no guidelines for how a prosecutor is to use this discretion. The second type of designation is judicial designation. For all charges other than ‘specified juvenile violations,’ the court may designate a case to be handled like an adult proceeding. In order for this to happen, the prosecution must request designation. The court will then hold a hearing. This hearing is the same as a hearing for waiver, and the court again weighs the seriousness of the alleged offense and the juvenile’s poor delinquency record. After designation, the proceedings are exactly the same as adult proceedings until sentencing. The court has three sentencing options if the child is tried and convicted as an adult. First, the court may enter a disposition, treating the case as a delinquency matter. The law presumes that this is the appropriate sanction unless the court determines that the best interests of the public would be served by sentencing the juvenile as an adult. In the second option, the court can simply enter an adult sentence. Finally, the court may delay the imposition of the adult sentence and enter a disposition pursuant to the juvenile code. The court must then periodically review that decision. If the child violates the terms and conditions of the disposition, the court may impose an adult sentence at any time. If such a violation is based upon the commission of a felony or a misdemeanor punishable by more than a year in prison, the court must impose an adult sentence. Finally, Michigan has mandatory sentencing. Any young person who falls under the family court’s jurisdiction for an offense where he used a firearm must be committed to a detention facility for a specified period of time. This law appears to go against the initial aims of the juvenile system, where a child’s individual circumstances are taken into account in each case. Now there is no room in the process for considering why a child might have had a gun. There are no mitigating factors. He simply faces a mandatory sentence.

Michigan’s practice of giving prosecutors and judges almost full discretion to charge juveniles with adult crimes is not unique. Almost every state has some form of judicial waiver. This process has no doubt led to many children serving long adult sentences. Statistics are startling. There are at least 2,225 child offenders serving life without parole sentences in U.S prisons for crimes committed before they were age 18. While many of the child offenders are now adults, sixteen percent were between thirteen and fifteen years old at the time they committed their crimes. An estimated fifty-nine percent were sentenced to life without parole for their first criminal conviction. Forty-two states currently have laws allowing children to receive life without parole sentences.

This paper has not yet addressed this topic, but African American youth are disproportionately affected in this area. Youths waived to criminal court are disproportionately older, male and nonwhite. In 1995, whites made up approximately eighty percent of the population at risk for delinquency and accounted for sixty-six percent of the delinquency cases formally disposed by the juvenile courts. However, only forty-six percent of those waived were white offenders. Racial disparities in waiver are only increasing over time. In 1978, thirty-nine percent of waived youths were nonwhite. By 1985, that number was forty-four percent, and rose to fifty-four percent a decade after that. Blacks are waived at higher rates than whites in all offense categories. A study looking at data found for all offense types, all age categories, and all years, black youths were more likely to be waived to criminal court than their white counterparts. The numbers are greatest for youths charged with person and drug offenses. Since drug arrests disproportionately harm African Americans , simple mathematics and logic suggest the more drug arrests we have, the more black youths will go to prison.

TREATMENT OF JUVENILES IN PRISON

Now that it has been shown how easy it is for youths to end up in the criminal justice system, it seems necessary to discuss their treatment in these confines. Juvenile detention centers do not appear to be much different from their adult counterparts. Take, for example, Arkansas facilities in the 1970s where juveniles were forced to kill dogs as discipline, forced to wear a dog's tail, chained to a bed as punishment, forced to eat feces and vomit, and made to get on their hands and knees and oink like pigs. When asked about this officials responded, “The program is good and should be continued.” Because of such inhumane, punitive treatment, Congress passed the Juvenile Justice and Delinquency Prevention Act in 1974. This act focused on the rehabilitative aspect of the system as opposed to punitive treatment. The Act gave grants to states if they separated juvenile from adult offenders and promoted other advanced juvenile justice practices. It set forth rehabilitation as the goal of detaining juveniles. The National Juvenile Detention Association defined juvenile detention as the “Temporary and safe custody of juveniles who are accused of conduct subject to the jurisdiction of the court and require a restricted environment for their own community’s safety while pending legal action. Further, juvenile detention provides a wide range of helpful services that support the juvenile’s physical, emotional, and social development. Helpful services minimally include: education, recreation, counseling, nutrition, medical and health care services, reading, visitation, communication, and continuous supervision.” An analysis of the conditions juveniles face will show if the system is living up to its description.

Overcrowding is a huge problem. A study showed as far back as 1993, more than seventy-five percent of juvenile facilities were overcrowded. Thirty percent of juveniles slept in undersized rooms. The ACLU intervened in Maryland in 1996 because juvenile centers were operating at forty percent above capacity. Overcrowding is not just a problem because it inconveniences those in the detention center. It leads to more incidents of institutional violence, suicidal behavior and an increased use of short-term isolation. Centers often rely on solitary confinement as punishment. Because of the fragile psychological makeup of children, there is no telling what effects this has. An Office of Juvenile Justice and Delinquency Protection study found facilities housing fifteen percent of all incarcerated juveniles had no limit on solitary confinement. Another study found more than 435,800 juveniles were subject to solitary confinement over a year and 84,000 juveniles were subject to solitary confinement for over twenty-four hours at a time. Suicide attempts become common. In one year 11,000 juveniles committed 17,600 acts of suicidal behavior.

Because juveniles are often sent to adult prison, we must look at their conditions while in adult prison. Children in adult prison are five times more likely to suffer sexual assault than in juvenile detention. In adult prison, children are two times more likely to suffer physical abuse from prison guards and fifty percent more likely to be attacked with a weapon than juvenile facilities.

CONSEQUENCES OF IMPRISONING JUVENILES

Adult prison exposes children to many things they would not see in juvenile prison. The number of people within prison itself causes significant problems. In large institutions, even in settings where the avowed purpose is to treat rather than punish, security concerns tend to become all-consuming. To insure the safety of inmates and staff and to guard against escape, regulations governing nearly every aspect of inmate life, and searches, segregation, counts, and restrictions on movement are routine. The stated aims behind juvenile detention center on rehabilitation. Placing juveniles in adult prison is completely antithetical to these stated aims because there is virtually no rehabilitation. Because prisons are primarily custodial facilities, most inmates do not engage in programs aimed at their personal or social development. In one survey of juvenile offenders in adult prison, many expressed a desire to participate in rehabilitative programming, but fewer than 10 percent were engaged in any sort of counseling or treatment program.

The physical setting of adult prison provides many more opportunities for private interaction among inmates than in juvenile facilities. In juvenile programs, staff participate in activities with small groups of youths throughout the day and, at night, remain proximate to them in their dormitories. In the prisons, for much of the day large groups of inmates congregate in the yard while correctional officers watch at a distance from the perimeter. During the evenings, inmates remain in their cells or dormitories supervised by correctional officers separated from them in glass-enclosed control rooms. Youths in prison spend much of their time talking to more skilled and experienced offenders who teach them new techniques of committing crime and methods of avoiding detection. Strained relations between inmates and staff provide additional incentive to plan unlawful behaviors surreptitiously.

Prisons are dangerous places where inmate norms frequently support violent behavior. There are very few ways to earn status in prison, so many inmates must display physical and verbal aggression to prove ones’ status. This verbal and physical aggression is also a way prison gangs band together and establish position within the prison. Because adolescents as a group tend to be highly sensitive to peer pressure, young offenders are especially likely to engage in violent behavior and to develop identities linked to domination and control.

Juveniles in prison are more likely to experience sexual assault. They feel most vulnerable to physical and sexual predation, which contributes to their exploitation; fear is often interpreted as a sign of weakness. Because of their vulnerability, adolescent inmates are more likely to be placed in protective or ‘safe-keep’ custody than are older inmates. Even though it seems separating kids from the adults is a good idea, it also has negative repercussions. Generally, inmates in protective custody are isolated from others around the clock, do not participate in educational or other programming, and have little recreation. This again shows the lack of rehabilitation children receive while in adult prison. Fear of victimization has connections to psychological well-being, especially among those who are unwilling or unable to retaliate against predators. Because they face such horrible conditions, youthful inmates face frequent anxiety and depression. Thus not only are young inmates more likely to be placed in protective custody because of their vulnerability to attack, but they are also more likely to be placed in specialized units for treatment of mental health problems.


To study the consequences of placing juveniles in adult prison, researchers interviewed juveniles from both types of detention centers. For most, adult prison was at best a test of will and endurance from which they hoped to emerge intact. At worst, it was a painful and denigrating experience that they pointed to as reason or justification for becoming more angry, embittered, cynical, or defeated or more skilled at committing crime.

More than half of the respondents currently incarcerated in juvenile facilities expressed confidence that they would remain law-abiding following release. The most common reason expressed for optimism was a shift in attitude about themselves brought on by relationships with program staff or skills learned from programs. Forty-two percent were uncertain about their futures, but only three percent anticipated they would commit further crimes. Only one-third of juveniles in the adult system expected to remain law abiding. Those who did say they expected to remain law abiding attributed the reason to time served or maturation during their stay. This is in contrast to the youths in the juvenile facilities who pointed to the rehabilitative aspects of the program. Forty-six percent of those in the adult system were uncertain that they would remain law abiding, and eighteen percent expected to reoffend.

The consequences of attending adult prison do not cease when the offender exits. In many ways, the consequences are just beginning. A felony record will follow someone forever. Depending on the state, a felony record can limit ones ability to vote, serve in the military, hold public office, or serve on jury duty. Obviously these rights only matter if the ex-con is not too disillusioned with society to want to participate. A past conviction can also limit an ex offender’s ability to receive certain professional licenses. Furthermore, as a result of a criminal conviction, offenders who are motivated to remove themselves from the criminal influence of former friends and associates may encounter obstacles that make it difficult to become integrated into conventional groups and activities. Development of significant bonds to ‘productive members of society’ has the potential to alter criminal trajectories. One example is marriage, where research shows bonds of affection and commitment interrupt criminal careers. A criminal past might limit the personal and social groups available to an ex-con. This could very much include potential dating partners.

Even greater consequences emerge when a person with a criminal record is looking for a job. Depending on the state, many youthful indiscretions are expunged when the offender turns eighteen. Transferring from juvenile detention to adult prison destroys that ability to hide acts committed while young from employers. Racial factors again emerge. A black man with a felony has almost zero legitimate job prospects. It is bad enough for black men without criminal records. A study by Princeton professor Devah Pager found that among those with no criminal record, white applicants were more than twice as likely to receive a callback relative to equally qualified black applicants. Whites with a felony conviction fared just as well, if not better than a black applicant with a clean background. What does this say for black job applicants with felony records? Since poverty and crime are so interrelated, crime will necessarily increase in the black community if one cannot find a job because one was previously convicted of a crime. This is a disastrous feedback loop. The ‘tough on crime’ policy of sending kids to adult prison with mandatory minimum sentences directly relates to this outcome.

SHOULD COURTS EVEN CONSIDER JUVENILES ADULTS?

A look at history shows much of the policy regarding children in the criminal justice system comes from common law and gut feelings. This policy, like many other criminal justice policies, is laughably devoid of scientific backing. Because of our needs for efficiency and to follow bright-line rules, the U.S. legal system has developed arbitrary ages to classify people. While seemingly absurd from an outside perspective, our legal system accepts treating two people born one day apart differently for committing the same crime in the name of predictability and efficiency. Unfortunately, this old way of doing things exists today, likely because of inertia and an unwillingness to change tradition. This paper showed lawmakers throughout history have been cognizant of juveniles’ inability to fully comprehend their criminal activities. Recent ‘tough on crime’ initiatives appear to throw all of that empathy out of the window. Because due process requires a mens rea element to crime, policy-makers behind initiatives sending juveniles to adult prisons must be assuming these youth have the necessary mens rea. Emerging science shows this might not be physically possible. This new science reliably shows that adolescents think and behave differently from adults, and that the deficits of teenagers in judgment and reasoning are the result of biological immaturity in brain development. MRI scans of the brain show not only is the brain of the adolescent far from mature, but both gray and white matter undergo extensive structural changes well past puberty.

In the past, society blamed typical teenage activities on raging hormones. Recent research shows hormones are a factor, but another large factor is the lack of physical cognitive controls needed for mature behavior. The brain develops in stages from back to front. Some of the brain regions that reach maturity earliest are those in the back that deal with direct contact with the environment by controlling vision, hearing, touch and spatial processing. The next stage of development happens when the brain learns to coordinate these functions. The final stage of development occurs in the prefrontal cortex. This part of the brain is responsible for planning, setting priorities, organizing thoughts, suppressing impulses and weighing the consequences of one’s actions. Recent research shows the combination of hormones and undeveloped teenage brains can lead to disastrous results. Sex hormones have a tremendous impact during the teen years. Not only do feelings reach a flash point more easily, but adolescents tend to seek out situations where they can allow their emotions and passions to run wild. Adolescents actively look for situations and experiences that will create intense feelings. This research shows there is a hormone-brain relationship contributing to the appetite for thrills, strong sensations and excitement. Temple psychologist Laurence Steinberg says the parts for exercising judgment are still maturing throughout the course of adolescence. So there is a time gap between when the brain impels kids toward taking risks early in adolescence and when the brain allows people to think before they act come online. “It’s like turning on the engine of a car without a skilled driver at the wheel.”

In laboratory experiments and studies across a wide range of adolescent populations, developmental psychologists show that adolescents are risk-takers who inflate the benefits of crime and sharply discount its consequences, even when they know the law. Adolescents take more risks with health and safety than do older adults, such as having unprotected sex, driving drunk, and engaging in other illegal behaviors. Adolescents are more impulsive than adults and insensitive to contextual cues that might temper their decisions. They lack the capacity for self-regulation of either impulses or emotions, and their tendency toward sensation seeking often trumps both self-regulation and social judgments or risks and consequences. Peer pressure greatly affects teens. A study looked at the willingness of teens and adults to run red lights. When alone, both groups make safe choices. But when in the presence of peers, teenagers were much more likely to take risks compared to those over the age of twenty.

The Supreme Court took this into consideration when it ruled the execution of defendants for crimes committed before eighteen violates the Eighth and Fourteenth Amendments. The Court noted juveniles' susceptibility to immature and irresponsible behavior means, “Their irresponsible conduct is not as morally reprehensible as that of an adult.” Further, “Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.” And finally, “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” This author urges the Court to continue this line of reasoning and strike down life sentences without the possibility of parole for juveniles as cruel and unusual punishment.

This author sees many problems with treating juveniles as adults. The most glaring problem is mandatory sentencing for young offenders for certain crimes. This is simply the system completely giving up on a child. This section explored the physical inability of juveniles to make what the system considers ‘adult’ decisions. There are many sociological and biological factors involved in the daily decision-making of juveniles. Mandatory sentencing throws all of these considerations away. The policy-makers behind the tough on crime initiatives over the last several decades are either political miscreants or callously indifferent to the youth disproportionately affected by such overbroad and over-inclusive laws. The fact that mostly black youth find themselves caught in this thunderstorm of indifference is even more infuriating. In an attempt to get a quick fix of the nonexistent problem of rampant youthful violence, these policy-makers are only going to create the problem they used as a boogeyman for more draconian laws. In an attempt to stop crime, they are only creating more. These mandatory laws will put more immature youth in jail, causing them to become actual, hardened criminals. They will get out and have no prospects for a job, leading them to commit the crimes they learned all about while in jail.

A second problem with the present system is the discretion given to courts and prosecutors to try juveniles as adults. Since its nascent state, the juvenile system has broken up the ‘good’ and ‘bad’ kids. The good kids go to juvenile detention and the bad go to jail. In deciding between good and bad, prosecutors and judges must decide what is in the best interest of justice. Again, the interest of justice is when the risk of harm to society posed by affording the defendant more lenient treatment within the juvenile justice system outweighs the defendant’s chance for rehabilitation. How can we expect these institutions to make the right decision on whether a child has a chance for rehabilitation if it cannot look at the long-term effects of jailing tens of thousands of juveniles and see that this practice has far greater harms to society than being lenient with an individual child and keeping him in juvenile detention? Furthermore, this interest of justice exploration sets up a false dichotomy of prison versus rehabilitation. A look at the conditions of many juvenile detention centers shows these places are not operating to rehabilitate its occupants. Many of these centers are ostensibly no different from adult jails. A final problem with unfettered discretion to judges and prosecutors is the unconscious racial bias that is pervasive throughout the criminal justice system. Often, a judge or prosecutor looks at the juvenile in question while considering whether he has any chance of rehabilitation. Suppose a judge sees only black offenders coming in for drug possession crimes over a week. Are we really supposed to think this will not affect his decision when the next black youth steps in front of the judge? In the determination of rehabilitative potential, two of the factors judges and prosecutors take into account are particularly prone to unconscious bias. The first is social background of the youth. If the offender is black, what will the judge think about the youth’s social background? What if the kid’s clothes are a little too baggy or he looks like an adult criminal the judge just sentenced last week to twenty years? Surely unconscious biases will creep into his decision. Like this section showed, we are not completely in control of our brains. The second factor prone to unconscious bias is the juvenile’s present intellectual development and psychological maturity. Since judges and prosecutors come from a strict legal background, we can probably assume they have certain ideas as to what makes up intelligence. The command of language is likely one of those aspects of intelligence. If a black youth comes from a different part of the city and speaks differently, are we to assume the judge will take the reasons for the youth’s different vernacular into account? The idea of development itself has cultural and socioeconomic bias underpinnings. Black and white kids might have different interests simply because of the areas of town they live in. Each group might have different access to certain opportunities. If a white kid is involved in school plays and the boy scouts when he commits a crime, a judge is probably going to be more lenient to him than a black kid who hangs out with his friends because his school district cut all after-school funding.

This paper has explored the history of the juvenile criminal justice system and found it has a tradition of leniency for youthful offenders. Only in recent history have our legislatures gotten ‘tough on crime’ and started charging and sentencing youthful offenders to adult sentences and prison stays. Unfortunately, many states have gone as far as allowing judges and prosecutors the full discretion to charge a person of any age for an adult crime. Mandatory sentencing and unfettered discretion combined with stereotypes and racial biases have created a system where over sixty percent of juveniles in adult prisons are black, compared to under twenty percent for white juveniles. A long-term look at this policy shows these kids going to adult prison for petty drug or property crimes will come out with an encyclopedic knowledge of crime. In many cases, their treatment while inside prison is unspeakable. How can we expect these children to become participants in our society if we tell them from a young age that they have no chance of rehabilitation? Our society is telling kids to become criminals by treating them this way. The teenage years are perhaps the most crucial time in a person’s life. It is a time where one learns to test boundaries without fear of drastic future repercussions. Imaging science tells us teenagers might not even be capable of understanding future consequences at this time. Other studies show how much teens are influenced by their hormones and other teens. In some ways, they are not even in control of many of their actions. It is wrong and immoral to take a child out of this developmental stage of life and throw him in prison for 25 years because one person thinks he has no chance of rehabilitation.