Social Welfare and Fairness in Juvenile Crime Regulation

Elizabeth S. Scott, Columbia Law School
Laurence Steinberg, Temple University


This Article argues that a developmental model of juvenile crime regulation grounded in scientific knowledge about adolescence is both more likely to promote social welfare and is fairer to young offenders than a regime that fails to attend to developmental research. We focus on the less familiar social welfare argument for a separate and more lenient juvenile justice system, and demonstrate that the punitive law reforms of the 1990s have failed to minimize the social cost of juvenile crime. The expanded use of adult incarceration likely contributed to the declining juvenile crime rates since the mid-1990s, but the financial costs have been very high and not justified in terms of crime reduction for many youths. The evidence also supports that juveniles in prison have higher recidivism rates than comparable youths in the juvenile system. Moreover, less costly community dispositions have been shown to be more effective at reducing recidivism in some young offenders and are more likely to enhance the prospect that young offenders will lead satisfying lives. Our social welfare analysis is informed by scientific knowledge of adolescence and youth crime. Developmental research shows that the criminal activities of most young offenders are linked to developmental forces and they can be expected to "mature out" of their antisocial tendencies. Therefore, there is no reason to assume that these youths are headed for a career in crime unless correctional interventions push them in that direction. The research also shows that social context is critically important to the successful completion of developmental tasks essential to the transition to conventional adult roles associated with desistance from crime. The social context provided by correctional programs can enhance or undermine this process.

Developmental research also provides the foundation for a regime committed to fair and proportionate punishment of young offenders. We challenge the recent scholarly argument favoring an approach to juvenile justice dedicated solely to crime reduction, on the ground that the principle of retribution is a necessary check on government power in this context. The potential for unfairness under a pure-prevention approach is substantial – both in the form of excessive punishment and in the potential for variations in responses to offenders based on considerations related to risk but not linked to the crime itself. This unfairness undermines the legitimacy of the justice system, and it can be avoided by incorporating proportionality as well as prevention into the developmental framework.