NO PLAGIARISM DUE THURSDAY JUNE 13, 2019. ATTACHED IS CHAPTER FOR ASSISTANCE

06CH_Juvenile_Johnson.pdf

Home >Law homework help >Criminal homework help >NO PLAGIARISM DUE THURSDAY JUNE 13, 2019. ATTACHED IS CHAPTER FOR ASSISTANCE

Learning Objectives After studying this chapter, you should be able to accomplish the following objectives:

▪ Explain the purpose and primary features of the juvenile court. ▪ Summarize the jurisdiction of juvenile court, especially with regard to cases of abuse and neglect. ▪ Describe the traditional juvenile court process. ▪ Evaluate the different types of problem-solving courts. ▪ Summarize the laws used to transfer juveniles to adult court. ▪ Analyze the legal issues surrounding the death penalty for juveniles and the recent Supreme Court decision on mandatory sentences of life without the possibility of parole.

6The Juvenile Court Model

Ashlee Culverhouse/Chattanooga Times Free Press/Associated Press

Chapter Outline 6.1 Introduction

6.2 Jurisdiction of the Court

▪ Cases of Abuse and Neglect ▪ Child Protective Services

6.3 Traditional Juvenile Court Process

▪ Arrest ▪ Intake ▪ Detention ▪ Adjudication and Disposition ▪ Diversion

6.4 Alternative Processes: Problem-Solving Courts

▪ Teen Courts ▪ Juvenile Drug Courts ▪ Mental Health Courts

6.5 Alternative Processes: Transferring Youth to Adult Court

▪ Transfer Laws ▪ Criticisms of Transfer Laws

6.6 Death Penalty for Juveniles

In the fall of 2002, two men terrorized the Washington, D.C., area by randomly killing 10 people over the course of three weeks. The pair earned the name “Beltway Snipers” because of the shooting method used to kill their victims. In most circumstances, the victims were shot sniper-style from a long distance without the shooters being seen by the victims or others around them. The victims were chosen at random while they were simply going about their everyday lives.

During the three-week period, the police had many leads but no real suspects. Then an anony- mous tipster directed police to a previous shooting in Alabama. In that case, the police found finger- print evidence, eventually linking the suspects and identifying the make and model of the car they were driving. Shortly thereafter, the police apprehended the assailants sleeping in their car at a rest stop near where the crimes were committed. After the assailants were caught, the police found the weapon used in many of the shootings as well as a hole in the trunk apparently used to conceal the sniper’s gun. The two individuals eventually convicted of the crimes were John Allen Muhammad and Lee Boyd Malvo. John Allen Muhammad, a 43-year-old man, was convicted of murder and sentenced to death. He was executed by lethal injection in November 2009.

The public was shocked to learn that the second assailant, Lee Boyd Malvo, was only 17 at the time of the shootings. He is currently serving six life sentences without the possibility of parole for his role in the crimes (Horwitz & Ruane, 2004). Prosecutors in Virginia contemplated trying him for additional capital crimes, which could have resulted in the death penalty. However, in 2010, the Supreme Court ruled the death penalty is unconstitutional for juvenile defendants.

Section 6.1Introduction

6.1 Introduction The juvenile justice system has changed over time in many ways. By most accounts, the cre- ation of the first juvenile court is one of the most significant changes in the history of the juve- nile justice system. The juvenile court model, created in 1899, developed with the recognition that juveniles are different from adult offenders. As such, the juvenile court concept adopted a less formal role of processing cases. In effect, the court embraced a caretaking role toward juveniles. At the same time, however, we have seen political and social forces shape the cur- rent juvenile court model.

There is a great deal of variation in how juvenile courts are organized throughout the United States. For example, juvenile courts nationwide differ in terms of who they serve, the interac- tions among the courtroom workgroup, and sentencing options available to judges. As noted by Bilchik (1999),

There is much variation in the way state statutes define the purposes of their juvenile courts. Some declare their goals in exhaustive detail, even listing spe- cific programs and sentencing options; others mention only broad aims. Most states seek to protect the interests of the child, the family, the community, or a combination of the three. (p. 3)

Although differences exist, the juvenile court model is organized around several core features:

• The judge should act as a parent or advocate for the child rather than rely simply on punishment.

• Juveniles and adults should be separated for all proceedings. • Juveniles and adults should be kept in separate institutions. • Probation officers should be appointed who will investigate the youth’s background

and provide case management services.

The first juvenile court was established in 1899. In 1999, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) published a series of articles to commemorate the 100th anniversary of its establishment; however, questions remain whether the core concepts of the juvenile court system have ever been fully realized. In the late 1990s, Cindy Lederman (1999) concluded that the courts were more punitive and lacked the resources needed to achieve their intended goal: the prevention of juvenile delinquency. She argued that juvenile courts should not simply mirror the adult criminal court system. Rather, they should be organized around the founding principles of rehabilitation and advocacy.

Political and social forces play an important role in shaping juvenile justice policy. The juve- nile court model is not immune to these types of influences. As the number of juvenile courts grew, several significant changes occurred. For example, as more juveniles were subjected to the court system, reformers advocated for the protection of juveniles’ due process rights. The focus on due process rights was advocated as a way to protect, not punish, juveniles who were involved in the system. However, as the “get tough” movement of the 1980s and 1990s spread through the country, reformers advocated for a punitive shift in the handling of juve- nile offenders. One example of this punitive shift is the increased number of youths treated as adults as shown by the increased use of transfer waivers to the adult court. Many states broadened the criteria for transferring juvenile offenders to the adult criminal court system

Section 6.2Jurisdiction of the Court

based on deterrence theory—that is, harsher treatment and punishments would discourage, or deter, would-be offenders in the future.

By the early 2000s, though, trends reversed, and juvenile courts began adopting more poli- cies congruent with the original goals of rehabilitation. For example, alternative courts such as juvenile drug courts, teen courts, and even juvenile mental health courts have become popular options. These courts, which have spread rapidly throughout the country, pair the court and the treatment provider to address juveniles’ various needs. Raising the age of jurisdiction (the age at which youth convicted of certain crimes will be sent to adult criminal court for processing) is a topic that has gained support in recent years. Finally, three major Supreme Court rulings since 2005 have affected the juvenile justice system in terms of death penalty eligibility and sentences of lifetime with- out parole. As we examine the current juvenile court system in this chapter, we discuss these issues as well as many others.

6.2 Jurisdiction of the Court Although many people may consider anyone under the age of 18 as a “youth,” courts vary in how they treat 16- and 17-year-old offenders. The majority of the states in this country set the age of original jurisdiction at 17 years of age; five states set it at 16 (see Figure 6.1). This issue continues to evolve because of research calling into question the effectiveness of trans- ferring youth to adult court.

Figure 6.1: Number of states by age of original jurisdiction*

*South Carolina’s Act 268 raised the age through age 17, effective 7/1/19; Louisiana's Act 501 raised the age through 17 for some youth effective 7/1/18, and others effective 7/1/20; New York's A3009C raised the age through 16 effective 10/1/18, and through age 17 effective 10/1/19; North Carolina's SL2017-57 raised the age through 17, effective 12/1/19.

“Delinquency upper age, 2016,” from “OJJDP statistical briefing book,” by Office of Juvenile Justice and Delinquency Prevention, 2017, Retrieved from https://www.ojjdp.gov/ojstatbb/structure_process/qa04102.asp?qaDate=2016&text=no&maplink=link2 and “Recent changes,” from “Jurisdictional boundaries,” by Juvenile Justice Geography, Policy, Practice, & Statistics, 2017, Retrieved from http://www.jjgps.org/jurisdictional-boundaries

Certain charges influence when a juvenile is automatically transferred. For example, Georgia Senate Bill 440, titled the Juvenile Justice Reform Act, gives the adult court exclusive jurisdic- tion over the trial of juveniles 13–17 years of age who have committed any offense catego- rized as the “seven deadly sins.” They are

0 16 years old 17 years old

45 45

Section 6.2Jurisdiction of the Court

• Murder • Rape • Aggravated robbery with a firearm • Aggravated child molestation • Aggravated sodomy • Aggravated sexual batter • Voluntary manslaughter (Georgia Department of Corrections, 2016)

Age aside, the juvenile court also serves youth from various backgrounds and offense types. For example, in addition to more serious criminal cases, the juvenile court is in charge of status offenders and abuse and neglect cases. In some states, the juvenile court retains jurisdiction over child custody disputes, youth with mental illnesses, protection orders, and child support.

It is the processing of abuse and neglect cases and status offenders, however, that continues to be the subject of great debate in the field of juvenile justice. Both groups are considered vulnerable populations, and studies suggest that, without careful consideration, the court’s involvement could exacerbate the problem.

Cases of Abuse and Neglect Abuse and neglect cases can present a number of unique challenges to the juve- nile court system. For example, the juve- nile court must be mindful of how the court’s involvement in the youth’s life could exacerbate existing problems (e.g., negative labeling, exposure to delin- quents). In other circumstances, the youth’s family may be involved in the criminal justice system and be resistant to engage in the process. In still other cir- cumstances, the youth may be involved in the system both in an abuse and neglect case and in a criminal case on a different matter. The complexity of these situations is illustrated in numerous studies that link exposure to violence (including child abuse) to criminal behavior. Consider the following facts:

• Abused children are significantly more likely to be involved in criminal behavior com- pared to those who were not abused.

• Abused children are more likely to be arrested both as juveniles and adults. • Abused children are three times more likely to use drugs and alcohol and to exhibit

aggressive behavior (Earle, 1995). • Studies show that abused and neglected youth may also experience other forms of

victimization, making their trauma more complex and the effects longer lasting (Fin- kelhor, Turner, Hamby, & Ormrod, 2011).

Axiom Photographic Limited/SuperStock The juvenile court system intervenes in cases of abuse and neglect and often must determine custody of juveniles.

Section 6.2Jurisdiction of the Court

The court’s responsibility for the child in an abuse and neglect case rests with the concept of in loco parentis. In loco parentis means “in place of the parent” and implies that the juve- nile court will maintain responsibility for the care of the juvenile in cases where the parents’ rights are terminated. Juveniles in this circumstance are referred to as wards of the state. In some circumstances, the juvenile court will decide whether criminal prosecution of the par- ent is necessary.

However, in many abuse and neglect cases, the parental rights are not terminated. In these cases, the purpose of the court’s involvement is to intervene and determine whether family reunification is possible. Regardless, the court will examine the needs of the youth and decide placement and custody issues for the child’s safety.

Child Protective Services Child Protective Services (CPS) is often involved in the disposition and investigation of abuse and neglect cases. Many states created CPS agencies in response to the Child Abuse Prevention and Treatment Act of 1974, which mandates that states provide services to investigate allegations of child maltreatment. The court’s involvement in child abuse and neglect cases often results from the findings of a CPS investigation. A typical investigation begins with a complaint to a CPS agency by a teacher, neighbor, police officer, or other con- cerned citizen. The CPS worker will investigate the allegation and decide whether to invoke a court filing on behalf of the youth. Although CPS agencies developed to investigate and care for the youth, these agencies have been the subject of intense criticism and scrutiny (see Spot- light: Does Child Protective Services Really Protect the Child? for further discussion).

Spotlight: Does Child Protective Services Really Protect the Child?

The news article was titled “Me and My Stick, We Gonna Have Some Fun.” Those were the alleged words of an irate father who beat his sons, one of them to death. All of the children in the home were regularly beaten, burned, and forced to live in filthy conditions in the base- ment. The family had been under the investigation of Child Protective Services (CPS), which said they found nothing wrong even when critics argued there were clear signs of abuse and neglect in the home (Stopczynski, 2012).

Child Protective Services agencies (sometimes known as the Department of Child and Family Services or the Department of Social Services) are under continual scrutiny either for fail- ing to protect children, as in the example just noted, or for keeping children away from their families for too long. These agencies have a difficult job to do and often lack the resources and staff training for adequate intervention.

Critics argue that CPS is unable to protect children and should be disbanded, because it has, in one author’s words, “outlived its usefulness”; others argue that the system of investigation is broken (Bergman, 2010). CPS workers are torn between being skeptical of the parents or caregivers who may have something to hide and being mindful of keeping families intact for the benefit of the child. Still others argue that we may need to revise our expectations of CPS,

(continued on next page)

Section 6.3Traditional Juvenile Court Process

In most jurisdictions, the juvenile court judge will hold a hearing to examine the case, assess the child’s safety, and determine whether the child needs alternative placements. In some jurisdictions, the case may be mediated pretrial. In this circumstance, the parents, attorneys, and child protection advocate may be able to establish an agreement prior to an adjudication hearing with the court. Youth may be appointed a guardian ad litem as well. The guardian ad litem’s role is to provide another voice in the process to advocate for the youth’s best interest.

The formal adjudication process often results in a specific course of action for the youth and sometimes for the parents. For example, if the youth needs services, the judge will order those at this time. The judge may also provide specific instructions or steps that the parents must follow in order to regain full custody of the youth. The court will remain involved in the case and review the progress of the youth and the parents in achieving reunification. In the end, the judge will decide permanent placement, whether with the biological parents, another relative, a foster parent, or someone else (Jones, 2006).

Critics worry that the court could have a negative impact on youth by pulling kids away from protective factors such as school, sports, and prosocial friends. As a result, some judges believe it is best to leave youth out of the courtroom process. However, others argue that youth should play an active role in the process, which includes notification of the court hear- ings, representation, and the opportunity to advocate for their own behalf (Jones, 2006). These same concerns play out in cases where juveniles are adjudicated criminally.

6.3 Traditional Juvenile Court Process The traditional juvenile court process is designed to be nonadversarial. In other words, the court system is designed to serve the best interest of the child. As such, the system differs in many ways from the adult criminal justice system. How the Miranda warning applies to juveniles is one example of how the systems differ. For example, police are required to issue

Spotlight: Does Child Protective Services Really Protect the Child? (continued)

that CPS is simply an investigative body and can do little to change the circumstances and risk factors in families. That change will come only with a larger effort toward identifying and managing the underlying causes of child abuse and neglect (Campbell, Cook, LaFleur, & Keenan, 2010).

Some effort to remedy these issues is being seen in the states. For example, the Texas legisla- ture recently passed four measures to help increase oversight, efficiency, and communication between various departments. The state adopted a community-based care model that was developed in the city of Fort Worth with positive results. The hope is that the program will prove just as effective on a broader scale (Star-Telegram, 2017).

Section 6.3Traditional Juvenile Court Process

a Miranda warning for both adults and juveniles. In the case of juveniles, however, the police are more likely to indulge youth by repeating the warning, rephrasing or even simplifying the language of the warning, or asking youth probing questions to make sure they understand their rights. At the same time, the juvenile justice system may choose to handle cases infor- mally through a variety of channels—diversion, alternative courts (e.g., teen courts), police diversionary programs, etc.—rather than through formal processing.

Figure 6.2: The juvenile justice system process

“Figure: Case flow diagram,” by Office of Juvenile Justice and Delinquency Prevention, n.d., Retrieved from https://www.ojjdp.gov/ ojstatbb/structure_process/case.html

Arrest The majority of cases handled by the juvenile court are referred to law enforcement agen- cies after an arrest. Note, however, that a juvenile’s delinquent behavior could come to the attention of the court from other sources (e.g., probation officers, social service agencies, vic- tims). The decision to arrest is complex, and the youth may be released to his or her parents, diverted to an alternative agency (e.g., shelter), or referred for prosecution.

More than 680,000 juveniles were arrested in 2016 (Federal Bureau of Investigation, 2017). Of those juveniles, just slightly over 41,000 were arrested for violent offenses (murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault), and more than 147,000 were arrested for property offenses (burglary, larceny/theft, motor vehicle theft, and arson). We also see some differences by age; the pattern suggests that older youth are arrested

Diversion

Prosecutorial discretion

Statutory exclusion

Transfer to junvenile

court

Judicial waiver

Informal processing/

diversion

Dismissal Release

Diversion

Revocation

Revocation Release

Diversion

Probation or other non- residential disposition

Criminal justice system

Law enforcement

Non-law enforcement

sources

Prosecution Juvenile

court intake Formal

processing Adjudication

Aftercare

Residential placement

Detention

Section 6.3Traditional Juvenile Court Process

more frequently than younger youth. For example, if we focus on the crimes com- mitted by youth under age 15, we see that only 2.2% of all arrests in 2016 were com- mitted by those in that age category.

The juvenile courts, however, do not nec- essarily see all of these cases. In 2010, for example, approximately 23% of the juve- niles who came into formal contact with the police were released to their parents. The remaining would likely be sent to the juvenile court for formal or informal pro- cessing (Sickmund & Puzzanchera, 2014). Informal processing might include divert- ing the youth to an alternative program (e.g., teen court) or might even result in a dismissal of the case. Those who are sent to the juvenile court for formal process- ing go through what is referred to as an intake process.

Intake The intake stage is considered a pivotal part of the process. At this stage the youth can be processed formally, diverted to an alternative agency or specialty court, or released from the system due to insufficient evidence. Typically, the intake process includes a review of the case and the youth’s history and suitability for the juvenile court. The intake review may result in a number of outcomes. For example, intake agents may decide there is insufficient evidence to proceed with the case and drop the charges. In other circumstances, the juvenile may enter into a diversion program, where the case is handled informally. But in other situations, the case may be transferred to the adult system for processing.

Who performs this intake review varies by jurisdiction. In some cases, the prosecutor’s office is responsible for reviewing the legal merits of the case. In other areas, the court may have its own intake unit that reviews the case. And in still other cases, the probation department may handle the review (Sickmund & Puzzanchera, 2014).

According to the latest statistics shown in Figure 6.2, approximately 55% of the cases referred to court will be handled formally. In these cases, a petition (similar to an indict- ment in adult court) would be filed with the court for formal processing. A petition is a court document detailing the charges against the youth. The prosecutor examines the evi- dence against the youth at this stage and determines whether there is sufficient evidence to proceed with the case.

Comstock/©Getty Images/Thinkstock Law enforcement officials record and catalogue the fingerprints of arrested juvenile offenders.

Section 6.3Traditional Juvenile Court Process

Figure 6.3: Expected juvenile court case processing of every 1,000 cases in 2015

From “Juvenile court processing for a typical 1,000 delinquency cases, 2015,” in OJJDP statistical briefing book, by Office of Juvenile Justice and Delinquency Prevention, 2018, Retrieved from https://www.ojjdp.gov/ojstatbb/court/JCSCF_Display.asp?ID=qa06601 &year=2015&group=1&estimate=1

The youth’s background will be assessed to better inform the court of the various issues or problems the youth faces. In some cases, the assessment process is very involved; other times the judge may simply examine the youth’s criminal background. As discussed in Chapter 4, a number of factors are correlated with criminal behavior. Those factors include education, peers, substance addiction, family, personality, and criminal attitudes (Andrews & Bonta, 2010). If youth are skipping school, hanging around with antisocial friends, and using drugs and alcohol, they have a greater likelihood of committing another crime in the future. Inves- tigating these factors at the intake stage is important, as what is learned about the youth’s situation can give the judge a sense of what types of services the juvenile may need.

On average, 45% of the cases referred to juvenile court are handled informally or diverted from formal processing (Sickmund & Puzzanchera, 2014). As mentioned earlier, informal processing can take several different routes including referral to an alternative court (e.g., teen court), informal probation, community service, restitution, or some other diversionary service. We discuss diversion later in this section, but let’s first examine the use of pretrial detention.

Detention Once youth are arrested and a petition has been filed, they may be detained prior to their first court hearing. The benefits of detaining youth can include ensuring that they will appear for their court hearing or giving them some time for stabilization (e.g., to address mental health

Placed 77

Probation 186

Other sanction 32

Probation 75

Other sanction 37

Dismissed 143

Waived 4

Adjudicated 295

Nonadjudicated 255

1,000 Cases

Probation 71

Other sanction 199

Dismissed 176

Nonpetitioned 446

Petitioned 554

Section 6.3Traditional Juvenile Court Process

issues or safety). Critics have argued against the pretrial detention of juveniles on due process grounds; however, the Supreme Court did not agree. In Schall v. Martin (1984), the Court ruled that the detention of juveniles for preventive rea- sons (i.e., to prevent them from commit- ting more crimes while awaiting adjudica- tion) is justifiable in the interest of public safety.

Although detaining youth prior to trial does have some benefits (e.g., ensuring safety if the youth is in harm’s way at home), a number of issues or problems have arisen with this sanction. For example, studies suggest that detained youth are

• At greater risk for suicide • At greater risk for physical and

sexual victimization • More likely to be convicted of the

offense • More likely to receive a more

severe disposition (Hayes, 2004; McCord, Widom, & Crowell, 2001)

Another criticism of detention arises from concerns regarding the racial and gender ineq- uities in detention decisions. For example, with regard to race, studies suggest that African American youth are substantially more likely to be detained pretrial than are white youth, even when arrested for the same charge type (Schiraldi & Ziedenberg, 2003). When we exam- ine gender, we see that boys are more likely to be detained than girls; however, girls are more likely to be detained for less serious offenses. For example, studies find that, compared to boys, girls are more likely to be detained for status offenses and more likely to be sent back to jail for minor technical offenses. Some girls are detained to protect them from violence in their environment. We often see this in status offenses such as running away, when the youth may be running away to escape abuse at home or school.

Concerns regarding the detention of girls for less serious crimes have led to several reforms. For example, proponents of these reforms recommend that the system be more responsive to the needs of girls in the system. That responsiveness includes educating those in the sys- tem that detention is not an appropriate therapeutic option for girls. If the girl is struggling with compliance due to abuse or school issues, judges may decide to use detention as a means of removing her from the negative environment. However, the detention environ- ment can simply exacerbate the problem. As such, advocates argue that gender-responsive approaches for managing delinquent girls are needed, given the complexity of their situation (Sherman, 2005).

Efforts to reduce the problems associated with detention exist as well. For example, in the early 1990s the Juvenile Detention Alternative Initiative (JDAI) created standards dictating

iStockphoto/Thinkstock Critics often argue whether the benefits of detaining juveniles before adjudication outweigh the costs.

Section 6.3Traditional Juvenile Court Process

the procedures and conditions surrounding the detention of juveniles. The initiative set forth a number of goals for participating sites, including ensuring that only high-risk youth would be detained, reducing the length of detention, and reducing the number of minorities kept in detention facilities. An evaluation of the sites utilizing these approaches found that “sites had reduced their reliance on secure detention [jails] without increasing arrest or failure to appear rates” (Sherman, 2005, p. 9).

Adjudication and Disposition The court hearing, which determines the juvenile’s guilt or innocence, is referred to as an adjudication hearing. The adjudication hearing follows some of the same procedures found in the adult court system. Juveniles are afforded certain due process rights at this hearing. For example, the standard of evidence dictates that there is proof beyond a reasonable doubt in order to convict the youth of the crime. In addition, there must be a written petition, juveniles have the right not to self-incriminate, and the attorneys may cross-examine witnesses.

At this point in the process, both sides of the case will be presented to the judge. In many cir- cumstances, the parents may be asked to testify on the youth’s behalf. If a pretrial agency or probation officer conducted the pretrial assessments, those results will be submitted to the judge for consideration. The charges against the youth may be dismissed or the case may be continued to another time. If the evidence supports the charges, the judge will typically set a date for the disposition hearing, which is also referred to as the sentencing phase.

The judge typically sets the disposition hearing for a different time than the adjudication hearing. The separation, also called the bifurcation, of the two hearings is beneficial for several reasons. Most notably, the judge can consider factors not necessarily admissible in the determination of guilt. For example, the judge may consider the youth’s living circum- stances, school history, family supports, and other factors during the sentencing process. If the youth is considered low risk for future delinquency, that could reduce the severity of the sentence given.

The role of the defense attorney is important here as well. The defense attorney’s role as an advocate for the juvenile came under intense scrutiny in the 1990s. The OJJDP created the Due Process Advocacy Project in 1993. The purpose of the project was to provide a national review of how well juvenile delinquents were being served by their defense attorneys. On the one hand, the juvenile’s defense attorney needs to be a zealous advocate for his or her client, which may lead to an adversarial relationship with the prosecutor. On the other hand, the defense attorney must understand the needs of the client and maintain a helping role. The project included surveys and interviews with juvenile justice professionals. The recommen- dations are as follows:

Juvenile defenders must: understand child and adolescent development to be able to communicate effectively with their clients, and to evaluate the cli- ent’s level of maturity and competency and its relevancy to the delinquency case; have knowledge of and contacts at community-based programs to com- pose an individualized disposition plan; be able to enlist the client’s parent or guardian as an ally without compromising the attorney-client relationship; know the intricacies of mental health and special education law, as well as the network of schools that may or may not be appropriate placements for

Section 6.3Traditional Juvenile Court Process

the client; and communicate the long- and short-term collateral consequences of a juvenile adjudication, including the possible impact on public housing, school and job applications, eligibility or financial aid, and participation in the armed forces. (Sterling, 2009, p. 4)

In many circumstances, the juvenile’s case may be eligible for a diversion.

Diversion Diversion refers to moving or routing a case from formal processing in the juvenile justice system. The logic behind diverting cases from the juvenile justice system rests on several grounds, most notably that processing juveniles through a formal system could potentially do more harm than good (Lundman, 1993; Mears, 2017). The concern surrounding the formal processing of juveniles through the court system is the impact that exposure to the system might have on future criminal behavior. Studies emerged in the 1960s suggesting that youth who were formally labeled as criminals were more likely to have worse outcomes. It was dur- ing this time that labeling theory was popularized.

A wide range of services fall under the label “diversion program.” As a result, assessing the features or effectiveness of diversion programs is difficult. Several issues come into play in this regard. First, programs vary in terms of types and intensity of the services offered. For example, a diversion program may consist of only community service for a few weekends in one jurisdiction, whereas another diversionary program may be much more intensive and require the youth to attend treatment and complete restitution over a series of months. Sec- ond, deciding which juveniles to target is a source of debate. For example, in many circum- stances, diversion programs are reserved for those who commit less serious offenses (e.g., shoplifting, status offenses like truancy); however, studies have found that diversion programs could work for those who commit more serious crimes and have targeted those juveniles as well (Davidson, Redner, Blakely, Mitchell, & Emshoff, 1987). As such, some jurisdictions send youth from a variety of backgrounds through diversion programs.

Given the difficulty in deciding whom to divert and what services to offer, it is not surprising that studies have found mixed results in terms of effectiveness. Some studies showed that diverting youth from formal processing is an effective way to reduce future criminal behavior (Wilson & Hodge, 2013), but others found it has no effect or even increases the recidivism rates of juveniles (Lipsey, Cordray, & Berger, 1981; Schwalbe, Gearing, MacKenzie, Brewer, and Ibrahim, 2012). However, a more recent meta-analysis of diversion programs found ben- efits, with those diverted from official processing experiencing lower recidivism rates (Wong, Bouchard, Gravel, Bouchard, & Morselli, 2016).

In the 1990s, problem-solving courts for juveniles emerged as an intensive diversionary- type program. Problem-solving courts, also referred to as specialty courts, developed more from an organizational crisis created by an increase in court caseloads than from pure inter- est in diversion. However, these courts can serve youth in some of the same ways as more traditional diversion programs. Several specialty or alternative courts have developed for juveniles; however, the most common are teen/youth courts, drug courts, and mental health courts (described in the next section). See the Featured Program box for a closer look at one of these programs.

Section 6.3Traditional Juvenile Court Process

6.4 Alternative Processes: Problem-Solving Courts Alternative courts, often referred to as problem-solving courts, are a fairly recent and popular innovation. Problem-solving courts are popular in both the adult and juvenile jus- tice systems. In fact, as we will discuss in this section, drug courts and mental health courts for juveniles emerged from the adult system. Teen courts are an example of a problem-solving court designed spe- cifically for juvenile delinquents.

Teen Courts The rapid growth of teen courts suggests that they are popular in many jurisdictions. For example, in 1994 only 78 teen courts were in operation (Butts & Buck, 2000; Herman, 2002). Currently, approximately

Featured Program: The Beat Within 209 Ninth St., San Francisco, CA 94103

http://beatwithin.org/

Mission: The Beat Within’s mission is to provide incarcerated youth with consistent opportunities to share their ideas and life experiences in a safe space that encourages literacy, self-expression, critical thinking skills, and healthy, supportive relation- ships with adults and their community. Outside of the juvenile justice system, The Beat Within part- ners with community organizations and individuals to bring resources to youth both inside and outside of detention. We are committed to being an effective bridge between youth who are locked up and the community that aims to support their progress toward a healthy, nonviolent, and productive life.

My motivation is The Beat Within

It helps me through these rough days.

It’s a place where I can be myself and write

All the pain away.

—Pretty Kevy, Alameda, CA (Issue 17.39/40, Volume A/B)

David Inocencio knows how far a little respect can go. As a youth advocate, David worked in the community, providing alternatives to incarceration. What he found was simple— when these youth were treated like human beings worthy of respect they opened up. Their answers became less guarded, and, perhaps for the first time in their lives, they felt heard. They felt like they had something valuable to say.

It was this concept that motivated David to team up with Pacific News Service, a nonprofit media/communications organization, to create The Beat Within—a series of writing work- shops for youth detained in San Francisco’s Youth Guidance Center. The Beat’s first publica- tion was created out of the exigency that followed the murder of rapper Tupac Shakur, when David noticed a need for the teens he worked with to publicize their intense feelings of loss. Originally, their work was printed in a six-page magazine, which was brought back to them the following week. From there, the workshops have only grown, seeking to empower young people by affirming their unique voice.

At a Beat Within writing workshop, a volunteer facilitator meets with 10–20 youth who are given several writing prompts and encouraged to tell their story. The writings and art com- posed in the workshops are then transcribed by Beat staff to review for publication. Each entry selected to be published receives a response from one of the Beat’s staff or volunteers. Responses like the following examples offer the writers praise, encouragement, advice, or questions to prompt further thinking:

• “It takes a lot of courage and independence to say what you did. What are some of your sources for strength?”

• “Truly great work. You have submitted some really lovely poems this week! We think you are finding your strength as a writer and a poet.”

(continued on next page)

Katie Edwards/Ikon Images/SuperStock

Featured Program: The Beat Within (continued) For the staff at the Beat, this is their chance to show writers that at least one person in the world sees them and recognizes the situation they’re in. For some youth, being published is the first positive recognition they have ever received. Many of these teens have been margin- alized since they were old enough to remember, living on the fringes of a society that judges them in one glance. For these teens, the affirmation that they are worthy to be heard can be life changing. All writers are encouraged to continue writing after they are out of detention, wherever life takes them.

Today, The Beat Within staff and volunteers serve more than 5,000 youth annually through workshops in 12 California county juvenile halls: Alameda, Fresno, Los Angeles, Marin, Monterey, Riverside, San Bernardino, San Diego, San Francisco, Santa Clara, Santa Cruz, and Solano. Outside of California, Beat workshops occur in Arizona, Hawaii, New Mexico, Oregon, Texas, and Washington, D.C. The Beat Within has also partnered with education and criminal justice programs at the University of California, Berkeley; Stanford University; the Univer- sity of Hawaii; the University of Redlands; and Portland State University. Currently, The Beat Within is 80 pages and is printed biweekly.

For the latest issue of The Beat Within, check out the “Archives” link on their website. For more information on The Beat Within, visit the following websites:

• Watch the story of The Beat Within (received Honorable Mention at the BEA Festival of Media Arts, 2011): http://www.youtube.com/watch?v=pKrQ52SQQ1c&feature=play

• SF Gate article (“An underground railroad of artistry”): http://www.sfgate.com/bayarea/ article/Release-The-Beat-is-a-magazine-newsletter-2661082.php

• Juvenile Justice Information Exchange, “Healing Words: Creative Writing Programs for Kids in Detention”: https://jjie.org/2012/11/29/healing-words-creative-writing -programs-as-therapy-for-kids-detention/

Andreas Fuhrmann/Record Searchlight/Associated Press Many jurisdictions use teen courts as a diversionary tool to reduce future arrests of first time nonviolent offenders.

Section 6.4Alternative Processes: Problem-Solving Courts

Featured Program: The Beat Within 209 Ninth St., San Francisco, CA 94103

http://beatwithin.org/

My motivation is The Beat Within

It helps me through these rough days.

It’s a place where I can be myself and write

All the pain away.

—Pretty Kevy, Alameda, CA (Issue 17.39/40, Volume A/B)

• “It takes a lot of courage and independence to say what you did. What are some of your sources for strength?”

• “Truly great work. You have submitted some really lovely poems this week! We think you are finding your strength as a writer and a poet.”

(continued on next page)

Katie Edwards/Ikon Images/SuperStock

For the latest issue of The Beat Within, check out the “Archives” link on their website. For more information on The Beat Within, visit the following websites:

• Watch the story of The Beat Within (received Honorable Mention at the BEA Festival of Media Arts, 2011): http://www.youtube.com/watch?v=pKrQ52SQQ1c&feature=play

• SF Gate article (“An underground railroad of artistry”): http://www.sfgate.com/bayarea/ article/Release-The-Beat-is-a-magazine-newsletter-2661082.php

Andreas Fuhrmann/Record Searchlight/Associated Press Many jurisdictions use teen courts as a diversionary tool to reduce future arrests of first time nonviolent offenders.

Section 6.4Alternative Processes: Problem-Solving Courts

1,400 youth or teen courts are operating in the United States (OJJDP, 2012). Typically, teen courts are designed for first-time nonviolent offenders. The courts are considered diversion- ary programs given their use of an informal courtroom process. The courts typically handle juveniles who have committed status offenses, but they can handle misdemeanor offenses including drug possession, assault, and disorderly conduct. One of the core features of the teen court is the involvement of youth peers. Having juveniles’ peers involved in the process rests on the logic that teens will respect their peers’ opinion of their behavior. It also provides a forum for the community to become involved in addressing juvenile delinquency. According to Butts and Buck (2000), there are five common teen court models:

• Adult judge. In this model the judge is an adult; however, the other “courtroom” members (e.g., prosecutor, defense attorney, jury) are youth.

• Youth judge. In this model the judge, prosecutor, defense attorney, and jury are youth. Adults would typically oversee this court and assist with facilitating the dis- positions (e.g. community service options).

• Peer jury. An adult is typically involved in a limited capacity as a judge in this model; however, there are no attorneys, and the peer jury may ask the youth ques- tions directly before deciding the sanction.

• Youth tribunal. Three youth act as a tribunal, or panel of judges, in this model. There are youth attorneys; however, there is no jury. The panel of youth decides the sanctions.

• Mixed model. Some courts choose to utilize two or more of the court models dis- cussed above.

As can be seen in Figure 6.4, a national survey of teen courts found that nearly half of the courts utilize an adult judge model, and most are relatively small. More than half of the programs serve fewer than 100 clients per year. Two-thirds (66%) served youth under the age of 16, and nearly all (98%) indicated that they rarely or never accept youth with a prior felony record.

Figure 6.4: Typical features of teen courts

From “Teen courts: A focus on research,” by J. Butts and J. Buck, 2000 (Washington, DC: Office of Juvenile Delinquency and Prevention, U.S. Department of Justice).

Adult judge Client served/yr

59 66

Under 16 No prior felony

Percent

Section 6.4Alternative Processes: Problem-Solving Courts

Teen courts can utilize various consequences or sanctions. The sanctions are designed not only to punish the youth for the misbehavior but also, in theory, to act as a learning tool to reduce future arrests. For example, restitution or community service is often used to allow youth to “repair” the damage caused by their crimes. However, other sanctions, including victim apology letters, essays, teen court duty, victim awareness classes, or other relevant classes (drug and alcohol, driving/traffic, etc.), are commonly used.

The effectiveness of the teen courts is the subject of debate given that some studies suggest they do not lower recidivism (Gase, Schooley, DeFosset, Stoll, & Kuo, 2016). Other studies, however, support their use. A study of teen courts across four states found that, overall, teen court participants have lower recidivism rates as compared to a similar group of juveniles who did not participate in a teen court. Butts, Buck, and Coggeshall (2002) concluded that teen courts seem like a viable option for juveniles not only because of the lower recidivism rates but also because they tend to operate at lower costs due to the involvement of volun- teers who work for the program. Other alternative courts have been developed to handle juveniles convicted of more serious crimes. For example, the drug court model has become popular for juveniles who are involved with drugs and alcohol.

Juvenile Drug Courts More than 20 years after it began, the drug court model continues to enjoy tremendous sup- port and popularity. Although variations exist between courts, the basic drug court model relies on a treatment- and accountability-oriented court approach used to relieve the back- logged judicial system created by the “war on drugs” (see Irwin & Austin, 2011). Virtually every state has implemented an adult drug court, and most have implemented a juvenile drug court. According to the National Association of Drug Court Professionals (2015), as of June 2015, more than 3,100 drug courts were operating in the United States. Of those, 409 (13%) were juvenile drug courts.

As drug courts expanded, efforts were made to identify the essential strategies for effectively processing and managing drug-abusing offenders. Although drug courts varied by location, common strategies set these courts apart from traditional criminal case processing. These strategies included placing the client in treatment near the point of arrest, providing ongoing assessment of clients’ needs, offering intensive treatment services for longer periods of time, developing a continuum of rewards and consequences to reinforce desired behavioral change, and offering aftercare and alumni options to sustain the impact of the primary treatment phase(s). In addition, drug courts emphasized close monitoring of required drug and alcohol abstinence; continuing and direct judicial interaction with each participant; and a multidisci- plinary, coordinated team approach to addressing participant noncompliance issues.

In the mid-1990s, juvenile drug courts emerged to specifically address juvenile delinquency involving substance abuse issues or addiction. Juvenile drug courts emanated from the popu- larity of the adult model. However, it quickly became apparent that involving juvenile offend- ers in treatment and services often involves a more complex set of dynamics. The complexity includes a number of factors. First, juvenile drug courts must involve the family. The family can be a tremendous resource and support system for the youth, but they can also be a bar- rier if they are not invested in helping the youth or if they enable the youth’s substance use.

Section 6.4Alternative Processes: Problem-Solving Courts

Moreover, the family may not be a traditional biological mother or father but can be other relatives, others residing in the home, or foster parents. The courts need to integrate these individuals into the youth’s treatment plan, which can be difficult. In some circumstances, this integration may mean working with family members who are also in treatment for their own substance abuse issues. As a result, parents may be involved in the adult drug court simulta- neous to the juvenile’s involvement in the juvenile drug court.

Second, youth involved in juvenile court often lack the maturity of adults and may justify their drug or alcohol use as being a normal ritual of adolescence. The notion of abstaining from drugs and alcohol forever is nearly unfathomable for a 16-year-old. As such, drug courts need to do more than simply tell youth that they may not have contact with their peers and must abstain from alcohol and drug use. Rather, the courts must develop positive peer networks for youth and motivate them in alternative ways. Finally, the court must also coordinate with the school system to ensure youth are attending and engaged.

The complexity of the juvenile court model led the National Drug Court Institute to gather a panel of experts to develop the 16 core components for juvenile drug courts (see Table 6.1). As you can see, the components are similar to the adult model but include important com- ponents such as family engagement, educational linkages, and developmentally appropriate services (U.S. Department of Justice, 2003).

Table 6.1: Juvenile drug courts: Key components

1. Collaborative planning

2. Teamwork

3. Clearly-defined target population and eligibility criteria

4. Judicial involvement and supervision

5. Monitoring and evaluation

6. Community partnerships

7. Comprehensive treatment planning

8. Developmentally-appropriate services

9. Gender-appropriate services

10. Cultural competency

11. Strength focused

12. Family engagement

13. Educational linkages

14. Drug testing

15. Goal-oriented incentives and sanctions

16. Confidentiality

From Juvenile drug courts: Strategies in practice, by U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, Washington, DC, 2003.

Section 6.4Alternative Processes: Problem-Solving Courts

As with teen courts, one of the biggest debates over these specialty courts is related to their effectiveness. These types of programs are often fairly long and intensive. As such, they can be more time consuming and sometimes more costly than other interventions. Supporters argue that the costs are neutralized by keeping the youth out of the system in the future (e.g., reduc- tion in recidivism); however, studies of juvenile drug courts find mixed results (Tanner-Smith, Lipsey, & Wilson, 2016; van Wormer & Lutze, 2011). According to Huddleston and Marlowe (2011), juvenile drug courts that rely on the following best practices are more likely to show significant positive outcomes:

• Requiring parents or guardians to attend status hearings • Holding status hearings in court in front of a judge • Avoiding overreliance on costly detention sanctions • Reducing youths’ associations with drug-using and delinquent peers • Enhancing parents’ or guardians’ supervision of their teens • Modeling consistent and effective disciplinary practices (p. 6)

Another variation on this drug court model is the family drug court. According to the Office of Justice Programs (1998), the family drug court is

a drug court that deals with cases involving parental rights in which an adult is the party litigant, which comes before the court through either the crimi- nal or civil process, and which arise out of the substance abuse of a parent, and include custody and visitation disputes; abuse, neglect and dependency matters; petitions to terminate parental rights; guardianship proceedings; or other loss, restriction or limitation of parental rights.

The goal of the family drug court is to treat the parent’s addiction and substance use in a holis- tic manner. The treatment may focus primarily on the adult but will also take into account family issues (e.g., parenting skills, coping, family reunification). As mentioned earlier, given the complexity of family drug use, the juvenile’s drug use may also come to the attention of the court, and treatment referrals can be made.

Mental Health Courts Juvenile mental health courts are the newest of the specialty courts, originating in Califor- nia in 2001 (Cocozza & Shufelt, 2006). They are designed to provide services similar to the juvenile drug court; however, the target population includes those with significant mental illnesses, which typically include bipolar disorder, attention-deficit/hyperactivity disorder (ADHD), clinical depression, anxiety, and so on. The courts may also accept youth who have certain developmental disabilities or autism.

Juvenile drug courts may accept youth with minor forms of mental illness if the juvenile has co-occurring disorders, in which case the individual has both a substance abuse problem and a mental health disorder. For instance, a juvenile drug court may accept a youth with a substance addiction who exhibits what is considered a more minor mental health issue such as depression or anxiety. Juvenile mental health courts, however, will typically target youth with more significant mental health issues such as schizophrenia or bipolar disorder. The

Section 6.5Alternative Processes: Transferring Youth to Adult Court

treatment services also have to take into consideration the youth’s mental illness. As such, the treatment will often need to include medication management, support services for mental illness that include school-based interventions, and family support that includes coping with youth who have mental illnesses.

Studies of juvenile mental health courts are more difficult to come by. Preliminary research on these courts shows some improved outcomes among participants (Behnken, Arredondo, & Packman, 2009; Ramirez, Andretta, Barnes, & Woodland, 2015); however, more research is needed before we can say for sure whether this type of court is a good choice for juveniles. And as noted by Cocozza and Shufelt (2006),

Given that the juvenile justice system is treatment and rehabilitation oriented, there is some question about the need for specialized courts in the juvenile justice system at all. Some have suggested that the same mechanisms could be established and the same services provided within a regular juvenile court setting. (p. 5)

6.5 Alternative Processes: Transferring Youth to Adult Court

Various sentencing options are available to the juvenile court judge. Examples include proba- tion, community service, residential treatment, and incarceration (see Chapter 7). The dis- positions available to the judge vary just as they do in the adult court. However, a unique disposition option in juvenile court is referred to as the blended sentence. In this circum- stance, the juvenile is given a disposition in both the juvenile and adult systems. For example, a juvenile may be sentenced to intensive supervision with juvenile probation but also receive a sentence of incarceration in the adult system. The judge will suspend the adult sentence based on the juvenile’s behavior in the intensive supervision probation. In this example, if the juvenile fails to abide by the conditions of probation, the adult sentence may be invoked. Another option is to transfer the case to the adult criminal court. In some states, the transfer of the case is automatic; in others, the judge makes the decision.

Transfer laws changed dramatically by the early 1990s. As noted earlier, the get-tough move- ment and the fear that the juvenile crime rate would rapidly increase led to a number of tougher policies for juvenile justice. One such get-tough approach was to make it easier to transfer juveniles to the adult criminal court.

An automatic transfer policy dictates that certain offenses will trigger a youth’s being sent to the adult system. To give some perspective of how these policies were driven by the social and political climate of the 1980s and 1990s, let’s consider their rapid expansion during this time. In the 1970s, only eight states had enacted automatic transfer laws, and those were primar- ily for capital offenses or murder. However, as noted by Griffin, Addie, Adams, and Firestine (2011), by the 1980s, 20 states had adopted automatic transfer laws, and by the end of the 1990s, 30 states had adopted these types of laws. Today, nearly every state has laws allowing for the transfer of juveniles to the adult court system for certain offenses. Although the juve- nile violent crime rate did not increase at the rate predicted, states have not reversed their transfer laws.

Section 6.5Alternative Processes: Transferring Youth to Adult Court

Transfer Laws As we discussed earlier, states vary in terms of how they define the age of original jurisdiction for juvenile court. However, all states have passed laws that allow for the adult court to handle juvenile cases in exceptional circumstances. The decision to transfer typically takes into con- sideration the defendant’s age, the seriousness of the crime, the defendant’s prior history, and the likelihood of rehabilitation. Some states also have adopted laws requiring transfer for certain types of crimes.

According to the National Conference of State Legislatures (2017), transfer laws fall under three basic categories:

• Judicial waiver laws. The case starts in juvenile court, and the juvenile court judge decides to send the case to adult court after weighing the evidence and a formal hearing. Sixteen states have some form of judicial waiver laws.

• Prosecutorial discretion or concurrent jurisdiction laws. The types of eligible cases or crimes are identified, and the prosecutor is granted the discretion to trans- fer the case. No formal hearing is necessary. Fifteen states have some form of pros- ecutorial discretion or concurrent jurisdiction laws.

• Statutory exclusion laws. Here the adult court has automatic jurisdiction over a set of cases or crimes. Twenty states have some form of statutory exclusion laws.

Most states also set forth a minimum age for transfer decisions. For example, three states allow juveniles as young as 10 years of age who are accused of murder to be transferred to the adult criminal court system (see Table 6.2 for the minimum age by state). Twenty-four states also allow for a petition to reverse the waiver to juvenile court. Thirty-four states have a provision referred to as “once an adult, always an adult,” which means that if the juvenile has been convicted in adult criminal court before, he or she will continue to be transferred to the adult system for processing in the event of future crimes. There are few exceptions to this law, however, as a few states require only certain felonies or youth of a certain age (16 years or older in most cases) to be eligible for the once an adult, always an adult law.

Table 6.2: Youngest age at which a juvenile can be transferred to the adult criminal court system

Age State

10 Kansas, Vermont, Wisconsin

12 Missouri, Montana

13 Illinois, Mississippi, North Carolina, Georgia, Wyoming, New Hampshire

14 Alabama, Arkansas, California, Connecticut, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, North Dakota, Ohio, Texas, Utah, Virginia

15 New Mexico

From “Figure: Minimum transfer age specified in statute, 2009,” in OJJDP statistics briefing book, by Office of Juvenile Justice and Delinquency Prevention, 2011, Retrieved from https://www.ojjdp.gov/ojstatbb/structure_process/qa04105.asp?qaDate=2009

A recent review of the rate of transfers to adult court showed some interesting findings. First, when we look at judicial transfers, the number of transfers dropped significantly since

Section 6.5Alternative Processes: Transferring Youth to Adult Court

the practice became popular in the mid-1990s. Moreover, few cases are transferred to adult court, with less than 2% of cases being transferred on average. Finally, not all of the transfers to adult court are for violent offenses (Bishop, Frazier, & Henretta, 1989). These issues as well as others have led to a number of criticisms of the transfer laws.

Criticisms of Transfer Laws First, some observers argue the statutory exclusion laws take the discretion away from the judge or prosecutor to decide whether the juvenile may be better served in the juvenile court. By examining the youth’s social history and life circum- stances, the judge or prosecutor may deem the juvenile worthy of a rehabilita- tive approach more commonly found in the juvenile justice system.

Second, research suggests that juveniles’ brains are not fully developed until they are in their mid-20s (Steinberg & Scott, 2003). The prefrontal cortex, which con- trols rational thought and decision mak- ing, does not fully develop until around age 25. Although juveniles may be able to distinguish between right and wrong before this age, their ability to make decisions may be considered a mitigating circumstance in deciding responsibility, particularly in an adult court.

Third, studies have shown that disparities in transfer decisions sometimes exist. For example, a recent study of 30,000 youth transferred to adult courts in Florida found that African Ameri- can youth were more likely than whites to be sent to prison posttransfer (Lehmann, Chiricos, & Bales, 2017). Moreover, although the seriousness of the offense is important in nearly all transfer cases, Hispanic and African American youth were more likely to be transferred for nearly all offense categories (Juszkiewicz, 2009).

Finally, another criticism against transfer laws is regarding their effectiveness. The logic behind transferring juveniles to adult court rests with deterrence theory. If juveniles are transferred to the adult court, it sends a message to both the juvenile in question as well as to other juveniles that they better not commit a crime. In theory, we would expect that the juve- nile who is given a more severe sanction would be less likely to commit a crime in the future. However, some studies suggest that juveniles transferred to adult court are actually less likely to receive prison time (Clarke, 1996; Kurlychek & Johnson, 2004). Perhaps more important is whether the transferred juveniles are more likely to recidivate. Studies have found that juveniles transferred to adult court are more likely to recidivate, less likely to have access to treatment services, and are at greater risk for victimization (Applegate, King Davis, & Cullen, 2009; Bales & Piquero, 2012).

The movement away from the get-tough philosophy for juvenile justice has led to a reduction in transfers to adult court, although this varies by offense. As seen in Figure 6.5, the number of youth transferred to adult court peaked in 1994 and has declined substantially since then.

Amanda Myers/Associated Press Many criticisms challenge the effectiveness of juvenile transfer laws.

Section 6.6Death Penalty for Juveniles

Figure 6.5: Number of delinquency cases judicially waived to adult criminal court, by charge type

From “National estimates of court processing for delinquency cases, all cases,” in Easy access to juvenile court statistics: 1985– 2015, by M. Sickmund, A. Sladky, and W. Kang, 2018, Retrieved from https://www.ojjdp.gov/ojstatbb/ezajcs/asp/process.asp

6.6 Death Penalty for Juveniles The death penalty for juveniles is another controversial subject for the juvenile justice sys- tem. In the late 1960s, the death penalty was challenged for both juveniles and adults under the Eighth Amendment protection against cruel and unusual punishment. At that time, the Supreme Court ruled that the death penalty process violated the Eighth Amendment due to the level of discretion given to judges in handling these cases. As a result, states began to revise their procedures and processes for handling death penalty cases, and by 1975 the Supreme Court ruled that the death penalty in itself did not violate an individual’s rights under the Eighth Amendment if states implemented safeguards for handling the cases. According to Lynn Cothern (2000, p. 3), the following safeguards were developed to make sentencing more equitable:

• In death penalty cases, the determination of guilt or innocence must be decided sep- arately from hearings in which sentences of life imprisonment or death are decided.

• The court must consider aggravating and mitigating circumstances in relation to both the crime and the offender.

• The death sentence must be subject to review by the highest state court of appeals to ensure that the penalty is in proportion to the gravity of the offense and is imposed even-handedly under state law.

For juveniles, the death penalty was an option if they were waived to adult court, although the Supreme Court did not take up the issue specifically until the late 1980s in the case of Thompson v. Oklahoma (1988). The Court ruled that youth under the age of 16 at the time of the crime could not be executed unless the state had a minimum age specified.

In subsequent cases (Stanford v. Kentucky [1989] and Wilkins v. Missouri [1989]), the Supreme Court upheld the ruling and argued that for a punishment to be considered cruel and unusual,

6000

5000

4000

3000

2000

1000

Person Property Drugs Public order

1985 1990 1995 2000 2005 2010 2015

Years

R a te

Section 6.6Death Penalty for Juveniles

it must offend society’s standard of human decency. The justices in favor of the death penalty argued that executing 16- and 17-year-olds did not offend this standard of decency. By 2000, 38 states allowed for punishment by death. Of these 38, however, 16 set the minimum age for a death-penalty punishment at 18 years of age, effectively removing the death penalty option for juveniles.

In 2003, the Supreme Court reversed its previous decisions on the death penalty for juve- niles. In Roper v. Simmons (2005), the Supreme Court ruled that the death penalty for youth under age 18 did violate the individual’s Eighth Amendment rights. In the majority opinion, the justices outlined several basic points to support their position. First, they felt society’s opinions on the death penalty had shifted and as a result indicated that the public was not supportive of the death penalty for juveniles. Recent opinion polls combined with the fact that many states did not allow for the death penalty for juveniles were noted. Second, it was the opinion of the Court that youth are amenable to change, and to argue that their character is “irretrievably depraved” would be inaccurate in many cases. Finally, data seemed to show that in many of the cases in which juvenile offenders were sentenced to death, there were histories or circumstances that could have been considered mitigating circumstances in their crimes.

Using similar logic as noted in the preceding examples, the Supreme Court ruled in Miller v. Alabama (2012) that a mandated sentence of life without the possibility of parole is also unconstitutional. In an earlier decision, Graham v. Florida (2010), the Court ruled that a disposition of life without the possibility of parole was unconstitutional in cases except homi- cide. However, the Miller case took on the notion that there can be a mandatory sentence of life without the possibly of parole for homicide cases. The justices in a 5–4 decision ruled that, under the Eighth Amendment, a mandatory life sentence without the possibility of parole is unconstitutional for juveniles. Justice Elena Kagan, writing the majority opinion, made the following argument:

The mandatory penalty schemes at issue here, however, prevent the sentencer from considering youth and from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. This contra- venes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children. (p. 5)

This ruling further affirms the view that juveniles are not simply young adults who possess the same set of reasoning skills as adults.

Note, however, that this decision is a fairly narrow one. As mentioned, the Supreme Court has simply ruled in this case that a mandatory life sentence is unconstitu- tional, meaning that juveniles can be sen- tenced to life without the possibility of parole if a judge considers the aggravating and mitigating circumstances of the case. So, what does that mean for Lee Boyd

Davis Turner/Associated Press Lee Boyd Malvo stands in court during his 2003 trial.

Summary of Learning Objectives

Malvo, whom we showcased at the beginning of the chapter? He was 17 years old at the time of his offense and received sentences of life without the possibility of parole in both Mary- land and Virginia. His Maryland sentence will stand at this time because that state does not have a mandatory life without the possibility of parole sentencing structure. However, as of 2018, the sentence he received in a Virginia court has been declared unconstitutional based on Miller v. Alabama. It remains to be seen whether the Supreme Court will eventually rule that all life without parole sentences are unconstitutional for juvenile defendants.

Summary of Learning Objectives Explain the purpose and primary features of the juvenile court.

• There is a great deal of variation in how juvenile courts are organized, but there are some key similarities: (1) The judge should act as a parent or advocate for the child rather than rely simply on punishment; (2) juveniles and adults should be separated for all proceedings; (3) juveniles and adults should be kept in separate institutions; and (4) a probation officer should be appointed who will investigate the youth’s background and provide case management services.

• Political and social forces play an important role in shaping juvenile justice policy. As a result, the purpose of juvenile courts continues to evolve, sometimes more toward deterrence and other times, rehabilitation.

Summarize the jurisdiction of juvenile court, especially with regard to cases of abuse and neglect.

• The juvenile court serves both juvenile delinquency cases and cases of abuse and neglect. Abuse and neglect cases can present a number of unique challenges to the juvenile court system. The complexity of these situations is illustrated in numerous studies that link exposure to violence (including child abuse) to criminal behavior.

• Most states have the age of original jurisdiction set at 17 years old. A few states have the age set at 16.

Describe the traditional juvenile court process.

• The traditional juvenile court process includes arrest, intake review, and adjudica- tion and disposition. Each one of these stages is a critical point in the process.

• Diversionary programs are popular for juvenile delinquents.

Evaluate the different types of problem-solving courts.

• Problem-solving courts have become a popular option for diverting youth from the traditional courtroom process. The most notable such courts are teen courts, drug courts, and mental health courts.

• Problem-solving courts are designed to provide appropriate sanctions for youth misbehavior, with the ultimate goal of reducing future arrests.

• Research on the effectiveness of problem-solving courts is complicated and incon- clusive, but generally the results appear to be more positive than negative overall.

Summary of Learning Objectives

Summarize the laws used to transfer juveniles to adult court.

• Although transferring juveniles to adult criminal court became more popular in the 1980s, support for these policies appears to be waning.

• The decision to transfer typically takes into consideration the defendant’s age, the seri- ousness of the crime, the defendant’s prior history, the likelihood of rehabilitation, and, in some states, the type of crime.

• Transfers fall into three categories: judicial waiver laws, prosecutorial discretion laws, and statutory exclusion laws

• Criticisms of transfer laws focus on issues ranging from the disparities in who is transferred to adult courts to claims that youth are biologically not able to reason as an adult.

Analyze the legal issues surrounding the death penalty for juveniles and the recent Supreme Court decision on mandatory sentences of life without the possibility of parole.

• The death penalty for juveniles was recently found unconstitutional. The decision noted that juveniles are less cognitively developed than adults.

• A recent court decision found that sentences of mandatory life in prison without parole for juveniles are a violation of the Eighth Amendment.

Critical Thinking Questions 1. Do you think the philosophy of the juvenile court system should be rehabilitative or

punitive? Defend your position. 2. Do you think that Child Protective Services has “run its course” like some critics sug-

gest? Or should it be revamped? How would you revamp such a service? 3. Teen courts have become a popular option for diverting youth. What downsides

might there be in involving the youth’s peers in the process? 4. Although most states have retained their transfer laws, the rate of transfers to adult

court has remained stable. Why do you think this is the case? 5. Do you agree with the Supreme Court regarding the Roper v. Simmons and Miller v.

Alabama cases? Why or why not?

Key Terms adjudication hearing The court hearing that determines the guilt or innocence of the juvenile.

bifurcation The separation of the adjudica- tion and disposition hearings.

blended sentence When a disposition is given in both the juvenile and adult court systems.

Child Abuse Prevention and Treatment Act of 1974 A law mandating that states provide services to investigate allegations of child maltreatment.

Child Protective Services (CPS) Agencies often involved in the disposition and investi- gation of abuse and neglect cases.

co-occurring disorders When a person has both a substance abuse problem and a mental health disorder.

Summary of Learning Objectives

disposition hearing If evidence supports the charges against the youth, the judge will typically set a date for this hearing.

family drug court A variation on the drug court that aims to treat a parent’s addiction and substance use in a holistic manner.

Graham v. Florida A 2010 Supreme Court case ruling that a disposition of life without the possibility of parole was unconstitu- tional in cases except homicide.

guardian ad litem A person appointed in the adjudication process in order to provide another voice to advocate for the youth’s best interest.

in loco parentis “In place of the parent;” implies that the juvenile court maintains the care and control of the youth.

Juvenile Detention Alternative Initiative (JDAI) An effort that created standards dictating the procedures and conditions sur- rounding the detention of juveniles.

Miller v. Alabama A 2012 Supreme Court case ruling that a mandated sentence of life without the possibility of parole for a juve- nile is unconstitutional.

petition A formal court document detailing the charges against the youth.

problem-solving courts Intensive diver- sionary-type programs that can serve youth in some of the same ways as more tradi- tional diversion programs; also referred to as specialty courts.

Roper v. Simmons A 2005 Supreme Court case that ruled the death penalty for youth under the age of 18 violates the individual’s Eighth Amendment rights.

Schall v. Martin A 1984 Supreme Court case that ruled that the detention of juve- niles for preventive reasons is justifiable in the interest of public safety.

Thompson v. Oklahoma A 1988 Supreme Court case that ruled that youth under the age of 16 at the time of a crime could not be executed unless the state had a minimum age specified.