Three decades of legislative activism have resulted in a broad expansion of states' authority to transfer adolescent offenders from juvenile to criminal (adult) courts. At the same time that legislatures have broadened the range of statutes and lowered the age thresholds for eligibility for transfer, states also have reallocated discretion away from judges and instituted simplified procedures that permit prosecutors to elect whether adolescents are prosecuted and sentenced in juvenile or criminal court. These developments reflect popular and political concerns that relatively lenient or attenuated punishment in juvenile court violates proportionality principles for serious crimes committed by adolescents, and is ineffective at deterring or controlling future crimes. This legislative activism has reshaped the boundaries of the juvenile court, and animated calls for its elimination. Yet these developments have taken place in a near vacuum of empirical analysis of the efficacy of these measures to increase punishment or reduce crime. Jurisprudential analyses of the fit between the traditional doctrines of immaturity and reduced culpability of juveniles also has lagged far behind the pace of legislative change. The redrawing of the boundaries of the juvenile court also has not reflected new knowledge on adolescent development, the legal socialization of adolescents, and their responsiveness to criminal sanctions. The new boundaries of the juvenile court also threaten to reify and intensify social and racial dimensions of criminal punishment.
To address these questions, we conducted a natural experiment to assess whether prosecuting and sentencing adolescent felony offenders in the criminal court leads to harsher punishment, and whether that harsher punishment translates into improved public safety. We show that serious adolescent offenders prosecuted in the criminal court are likely to be rearrested more quickly and more often for violent, property and weapons offenses, and they are more often and more quickly returned to incarceration. Adolescents prosecuted and punished in the juvenile court are more likely to be rearrested for drug offenses. These results suggest that law and policy facilitating wholesale waiver or categorical exclusion of certain groups of adolescents based solely on offense and age, are ineffective at both specific deterrence of serious crime, despite political rhetoric insisting the opposite. Such laws may increase the risk of serious crimes by adolescents and young adults, by heavily mortgaging their possibilities to deflect their criminal behavioral trajectory and enter a path of prosocial human development. Returning to a discretionary, judge-centered transfer policy, rather than wholesale waiver or surgical exclusion of entire categories of adolescent offenders, would limit the number of youth subjected to criminal court prosecution and harsh punishment conditions in adult corrections. A policy of discretionary transfer of only the most serious offenders, whose eligibility for transfer would be transparently assessed with full access to evidence and expertise, would ensure proportional punishment for the few adolescents whose severe crimes demand greater punishment than is available in the juvenile court, and whose punishment as juveniles might corrode the legitimacy of the juvenile court.
Jeffrey Fagan, Aaron Kupchik & Akiva Liberman,
Be Careful What You Wish For: Legal Sanctions and Public Safety Among Adolescent Offenders in Juvenile and Criminal Court,
Columbia Law School Public Law Research Paper No. 03-61
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1303