Center for Gender & Sexuality Law
The legal response to juvenile crime is undergoing revolutionary change, and its ultimate shape is uncertain. The traditional juvenile court, grounded in optimism about the potential for rehabilitation of young offenders, has long been the target of criticism, and even its defenders have been forced to acknowledge that it has failed to meet its objectives.1 Beginning in the late 1960s, when the Supreme Court introduced procedural regularity to delinquency proceedings in In re Gault,2 courts and legislatures began to slowly chip away at the foundations of the juvenile justice system. Recent developments have accelerated and intensified that process, as policy-makers at both the state and federal level respond to public fear and anger at what is perceived to be an epidemic of youth violence, including an alarming increase in juvenile homicide. Increasingly, critics of the traditional juvenile justice system argue that young offenders should be subject to the same punishment as adults for the harms they cause.5 The next step, which many are quite ready to take, is to abolish the separate juvenile justice system.
One way to think about the evolution of legal policies responding to youthful crime is in terms of the empirical account of adolescence that is expressed through these policies. From this perspective, the traditional (pre-Gault) juvenile court was shaped in important ways by a conception of errant youth as childlike, psychologically troubled, and malleable. 6 On this view, the job of the court was not to punish, but to rehabilitate and protect its charges. With the reform movement of the 1970s and 1980s, a less idealized view of adolescence emerged, together with a growing skepticism about the potential for rehabilitation. 7 Immature youth were seen as less culpable than adults, but not as blameless children. Lacking experience and judgment, young offenders needed lessons in accountability. A perusal of the current landscape of juvenile justice reform suggests a view of delinquent youth as appropriately subject to adult punishment and procedures and thus as indistinguishable in any important way from their adult counterparts. 8
Our aim in this essay is to examine these changing accounts through a developmental lens, with a purpose of bringing into the policy debate on juvenile justice reform the insights of development psychology. This perspective is useful in providing a scientific measure of the empirical assumptions, intuitions, and predictions about adolescence that have always played a large role in policy formation in this context. The framework challenges two assumptions underlying the contemporary punitivist reforms. The first is what might be called the "competence assumption:" that no important differences distinguish adolescents and adults charged with crimes. Modem developmental psychology provides substantial, if indirect, evidence that adolescent choices about involvement in crime and their decisions as defendants in the legal process reflect cognitive and psychosocial immaturity. This evidence challenges contemporary juvenile justice policies which discount the importance of conventional notions of criminal responsibility and constitutional requirements for fair proceedings (neither of which the critics challenge directly).
Elizabeth S. Scott & Thomas Grisso,
The Evolution of Adolescence : A Developmental Perspective on Juvenile Justice Reform,
J. Crim. L. & Criminology
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/332