Criminal Justice

A s you travel through your criminal justice/criminology studies, you will soon learn that some of the best-known or emerging explanations of crime and criminal behavior come from research

articles in academic journals. This book includes research articles throughout its sections, but you may be asking yourself, “How do I read a research article?” We hope to answer this question with a quick summary of the key elements of a research article, followed by the questions you should be answering as you read through the assigned sections.

Every research article published in a social science journal contains the following elements: (1) introduction, (2) literature review, (3) methodology, (4) results, and (5) discussion/conclusion.

In the introduction, you will find an overview of the purpose of the research. Within the introduction, you will also find the hypothesis or hypotheses. A hypothesis is most easily defined as an educated statement or guess. In most hypotheses, you will find that the format usually followed is “if X, Y will occur.” For example, a simple hypothesis may be “If the price of gas increases, more people will ride bikes.” This is a testable statement that the researcher wants to address in his or her study. Usually, authors state the hypothesis directly, but not always. Therefore, you must be aware of what the author is actually testing in the research project. If you are unable to find the hypothesis, ask yourself what is being tested or manipulated and what results are expected.

The next section of the research article is the literature review. At times the literature review is separated from the text in its own section, and at other times it can be found within the introduction. In any case, the literature review is an examination of what other researchers have already produced in terms of the research question or hypothesis. For example, returning to the hypothesis on the relationship between gas prices and bike riding, the author may find that five researchers conducted studies on the increase of gas prices. In the literature review, the author will discuss their findings and then discuss what his or her study will add to the existing research. The literature review may also be used as a platform of support for the hypothesis. For example, one researcher may have already determined that an increase in gas causes more people to roller-blade to work. The author can use this study as evidence to support the hypothesis that increased gas prices will lead to more bike riding.

The methods used in the research design are found in the next section of the research article. In the methodology section, you will find the following: who or what was studied, how many subjects were studied, the research tool (e.g., interview, survey, observation), how long the subjects were studied, and how the data were collected and analyzed. The methods section is usually very concise, with every step of the research project recorded. This is important because a major goal of the researcher is reliability— or, if the research is done repeatedly in the same way, will the results be the same?

The results section is an analysis of the researcher’s findings. If the researcher conducted a quantitative study (using numbers or statistics to explain the research), you will find statistical tables and analyses that explain whether or not the researcher’s hypothesis is supported. If the researcher conducted a qualitative study (nonnumerical research for the purpose of theory construction), the results will usually be displayed as a theoretical analysis or interpretation of the research question.

Finally, the research article concludes with a discussion and summary of the study. In the discussion, you will find that the hypothesis is usually restated and perhaps a short discussion of the rationale for the hypothesis is provided. You will also find a brief overview of the methodology and results. Finally, the section ends with a discussion of the implications of the research and what future research is still needed.

Now that you know the key elements of a research article, let us examine a sample article from your text.

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How to Read a Research Article

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Section 1 � How to Read a Research Article 43

y The Process Is the Punishment: Handling Cases in a Lower Criminal Court

1. What is the thesis or main idea from this article? ◆ The thesis or main idea may be found in the abstract of this article, which is the

italicized writing prior to the introduction to the piece. Within the abstract, the main idea is simply stated as “Malcolm Feeley’s study of the Court of Common Pleas, New Haven, Connecticut, shows that the punishment given out by the judge is not the only cost imposed by the criminal justice system” (p. 000). In other words, this article is based on a study of the lower criminal court and examines the ways in which case processing in the lower criminal court imposes punishment on the accused.

2. What is the hypothesis? ◆ The hypothesis is found in the paragraph prior to the section entitled “Introduction.”

Feeley states in the first sentence of this piece, “This article develops the argument that in the lower criminal courts the process itself is the punishment” (p. 000). Feeley then restates the hypothesis in other sections of the article (e.g., the end of the introduction and the beginning of the conclusion) to emphasize to the reader his main argument.

3. Is there prior literature related to the hypothesis? ◆ Feeley does not offer any prior literature related to the hypothesis. The notes of this

piece include some literature related to the argument, but Feeley does not offer this material in the body of this article. Because this article is an excerpt from Feeley’s book, it would be safe to assume that the literature review is found in another chapter of the book.

4. What methods are used to support the hypothesis? ◆ Although Feeley does not outwardly discuss his methodology, it may be inferred that Feeley

is using a methodology known as secondary data analysis. In other words, Feeley developed support for his hypothesis by examining records from the lower criminal courts of New Haven, Connecticut. Feeley investigated data regarding length of time in pretrial custody, the process and costs of pretrial release, the role of attorneys, the costs of continuances, the effects of failing to appear, and pretrial diversion. The analysis is derived from data generated by court agencies (e.g., New Haven Pretrial Services Council), police personnel, attorneys, and judges. Feeley also used informal discussions, rather than interviews, to generate data to support his hypothesis.

5. Is this a qualitative study or quantitative study? ◆ To determine whether or not a study is qualitative or quantitative, you must look at the

results. Is Feeley using numbers to support his hypothesis (quantitative) or is he developing a nonnumerical theoretical argument (qualitative)? Although Feeley cautions the reader that the figures in this piece are estimates and should not be read at face value, he still uses these numbers to demonstrate the costs of the lower court, thereby categorizing this study as quantitative in nature.

6. What are the results and how does the author present the results? ◆ The results are displayed in numerical tables (pp. 000–000). The tables illustrate release

detention rates, as well as length of time in pretrial detention. The results are then restated in the conclusion of this piece. Within the first paragraph, Feeley concludes: “The real punishment

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for many people is the pretrial process itself; that is why the(?) criminally accused invoke so few of the adversarial options available to them” (p. 000). Earlier in the same paragraph, Feeley supports this claim by emphasizing that his results are drawn from “tangible, direct, and immediate penalties extracted from those accused of minor criminal offenses” (p. 000).

7. Do you believe that the author provided a persuasive argument? Why or why not? ◆ This answer is ultimately up to the reader, but looking at this article, we think it is safe

to assume that the readers will agree that Feeley offered a persuasive argument. Let us return to his major premise: “In the lower courts, the process itself is the primary punishment.” Feeley supports this proposition with a review of already existing data derived from court offices, police officers, and attorneys, concluding that the costs and processes of the lower court are punishments often overlooked by criminal justice scholars and professionals.

8. What does the article add to your knowledge of the subject? ◆ This research assumes a level of groundbreaking knowledge, as Feeley states in the

conclusion: “The costs of lower court . . . are not those factors which have received the greatest attention from legal scholars, social scientists, or indeed court officials” (p. 000). Feeley states that the processes of the lower court lead to harsh treatment of defendants, time loss for victims, and the expected functions are not performed. Thus, the processes of the lower court that have traditionally been deemed as committed and prompt are actually forms of punishment virtually unaddressed in the criminal justice system.

9. What are the implications for criminal justice policy that can be derived from this article? ◆ One policy that Feeley recommends in the conclusion of the article is implementing

alternatives to the lower court processes (e.g., rehabilitation). Of course, the alternatives to the lower court come with their own shortcomings, yet Feeley emphasizes that this alternative should not be overlooked. Another policy Feeley touches on is community-based courts, which would more likely respond to the problems found within the lower courts. Finally, Feeley discusses the possibility of police court magistrates “meting out immediate kadi-like justice without reliance on defense counsel- but also without the need for bail, repeated court appearances, and the like” (p. 000). All of these recommendations are implications for criminal justice police that can be derived from this article.

10. Who is the intended audience of this article? ◆ A final question that is useful for the reader deals with the intended audience. As you

read the article, ask yourself, to whom is the author speaking? After you read this article, you will see that Feeley is writing for not only students but also professors, criminologists, judicial officials, and criminal justice personnel. The target audience may most easily be identified if you ask yourself “who will benefit from reading this article?”

Now that we have discussed the elements of a research article, it is your turn to continue through your text, reading the various articles and answering the same questions. You may find that some articles are easier to follow than others, but do not be dissuaded. Remember that each article follows the same format: introduction, literature review, methods, results, and discussion. If you have any problems, refer to this introduction for guidance.

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Section 1 � The Process Is the Punishment 45

R E A D I N G

Malcolm Feeley’s 1992 book, The Process Is the Punishment: Handling Cases in a Lower Criminal Court, is a classic study of the lower criminal courts that process the millions of defendants cited for traffic offenses and charged with minor crimes each year. Feeley studied adjudication patterns in the Court of Common Pleas in New Haven, Connecticut, a court with jurisdiction over minor offenses. He concluded that these offenses were adjudicated quickly and informally. He found, for instance, that defendants in the 1,600 cases he observed had the right to counsel, but not one insisted on an attorney. He further found that very few cases took more than a minute to dispose of; most were handled in mere seconds. More importantly, Feeley developed the argument that the process for the adjudication of misdemeanors is a more relevant punishment than the ultimate sentence handed down at the end of the trial. Specifically, he argued that the pretrial process imposes a series of “price tags” on the accused. These include the costs of paying bail, hiring an attorney, and losing work wages to attend court hearings.

Feeley’s work is important because it takes us to the bottom of the criminal justice wedding cake. It gives us a window into the operation of one criminal court, but one that is surely a microcosm of misdemeanor courts more generally. His study shows us that criminal trials are not what they are portrayed to be on television and in movies. Most crimes are minor ones, and most of them are dealt with swiftly and perfunctorily. To do otherwise would take a significant financial toll on a criminal justice system with many cases and limited resources.

The Process Is the Punishment

Handling Cases in a Lower Criminal Court

Malcolm M. Feeley

Summary

Many observers of the lower criminal courts are struck by the fact that the sentences seem to be so lenient. Malcolm Feeley’s study of the Court of Common Pleas, New Haven, Connecticut, shows that the punishment given out by the judge is not the only cost imposed by the criminal justice system.

This article develops the argument that in the lower criminal courts the process itself is the primary punishment. I identify the costs involved in the pretrial process and examine the ways they affect the organization, as well as the way a defendant will proceed on his journey through the court. This examination should help explain why lower courts

SOURCE: “The Process is the Punishment,” by Malcolm M. Feeley in The Process Is the Punishment: Handling Cases in a Lower Criminal Court. Copyright © 1971 by Russell Sage Foundation, 112 East 64th Street, New York, NY 10021. Reprinted with permission.

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do not fit their popular image, and why cases are processed so quickly in the Court of Common Pleas, New Haven, Connecticut.

y Introduction

The first set of factors I examine deals with the consequences of pretrial detention and the problems of securing pretrial release. The second explores the costs of securing an attorney. There are obvious financial outlays involved in retaining a private attorney, but there are also hidden costs associated with obtaining free counsel. A third set of factors deals with the problem of continuances. While delay often benefits the defendant, its importance for the defendant is often exaggerated, and it is crucial to distinguish defendant-induced delay from continuances which are arranged for the convenience of the court.

By themselves these costs may appear to be minor or even trivial in a process formally structured to focus on the crucial questions of adjudication and sentencing. However, in the aggregate, and in comparison with the actual consequences of adjudication and sentencing, they often loom large in the eyes of the criminally accused, and emerge as central concerns in getting through the criminal justice system.

These pretrial costs account for a number of puzzling phenomena: why so many people waive their right to free appointed counsel; why so many people do not show up for court at all; and why people choose the available adversarial options so infrequently. Furthermore, pretrial costs are part of the reason why pretrial diversion programs designed to benefit defendants and provide alternatives to standard adjudication do not receive a more enthu - siastic response. The accused often perceive these programs as cumbersome processes which simply increase their contact with the system.

The relative importance of the pretrial process hinges on one important set of considerations. Students of the criminal courts often overlook what

many criminologists and students of social class do not, that the fear of arrest and conviction does not loom as large in the eyes of many people brought into court as it does in the eyes of middle-class researchers. While I did not systematically interview a sample of defendants, I had informal and often extended discussions with dozens of defendants who were waiting for their cases to be called, and I watched still more discuss their cases with attorneys and prosecutors. While there were obvious and numerous exceptions, I was nevertheless struck by the frequent lack of concern about the stigma of conviction and by the more practical and far more immediate concerns about what the sentence would be and how quickly they could get out of court.

There are several reasons for this. First, many arrestees already have criminal records, so that whatever stigma does attach to a conviction is already eroded, if not destroyed.1 Second, many arrestees, particularly young ones, are part of a subculture which spurns conventional values and for which arrest and conviction may even function as a celebratory ritual, reinforcing their own values and identity. In fact, they may even perceive it as part of the process of coming of age.2 Third, lower-class people tend to be more present-oriented than middle-class people, and for obvious reasons.3 Many defendants are faced with an immediate concern for returning to work or their children, and these concerns often take precedence over the desire to avoid the remote consequences that a (or another) conviction might bring. This relative lack of concern about conviction is reinforced by the type of employment opportunities available to lower-class defendants. If an employee is reliable, it may make little difference whether or not he pleads guilty to a minor charge emerging from a “Saturday night escapade.” Indeed an employer is not likely to find out about the incident unless his employee has to arrange to miss work in order to appear in court.

If the stigma of the criminal sanction is not viewed as a significant sanction, the concrete costs of the pretrial process take on great significance. When this occurs, the process itself becomes the punishment.

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Section 1 � The Process Is the Punishment 47

y Pretrial Release: An Overview

A quick reading of the relevant Connecticut statutes, case law, and administrative directives conveys the impression that the state has an unswerving commitment to prompt pretrial release. There is an elaborate multi-layered system for decision and review, there are a variety of pretrial release alternatives, and assurance of appearance at trial is the sole criterion for establishing release conditions.

The police are empowered to make the initial release decision and can either release a suspect at the site of the arrest or take him to the central booking facility. Once the suspect is booked, police retain the power to establish release conditions, and they may release suspects on a written promise to appear (PTA) or on bond, which they set. If they do not release the arrestee, at this point, the police are then required to notify a bail commissioner who in turn is supposed to “promptly conduct [an] interview and investigation as he deems necessary to reach an independent decision.” If after this the accused is still not released, then the bail commissioner “shall set forth his reasons . . . in writing.4 The accused has a third opportunity to seek release at arraignment and all subsequent appearances, at which time he can request the judge to consider a bond reduction or release on PTA.

This liberal release policy is reflected in practice as well. Table 1 indicates that 89 percent of those arrested were released prior to the disposition of their cases, and that 52 percent of them were released on nonfinancial conditions, by police field citation or PTA. Thirty-seven percent were released on bond, and only 11 percent were detained until disposition. Although the proportion of arrestees released pending trial is typically regarded as the most important measure of a jurisdiction’s “liberality,” it is far from a complete picture. Two additional questions must be answered. First, at what point in the process do people secure release? To identify as “released” only those who were free at the time their cases were disposed of is to

overlook those who were held in detention for a while before eventually securing release. And if a person is released on bail, at what price was freedom purchased?

Length of Time in Pretrial Custody

Table 2 provides a breakdown of the length of time defendants in my sample were in custody before

Condition Immediately Prior to Disposition N %

Released on Citation 244 16%

Released on PTA 565 36

Released on Bond 567 37

(Subtotal released) (1376) (89%)

Detained 166 11

Total 1542 100%

Table 1 Release Detention Rages

Length of time N %

none 244 17

0–3 hours 624 43

4–7 hours 82 6

8–12 hours 92 6

13–24 hours 308 21

2 days 31 2

3 days 10 1

4–7 days 12 1

8–20 days 18 1

over 20 days 17 1

Total 1438 99*

Table 2 Length of Time in Pretrial Detention

*Rounding error.

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being released. Seventeen percent were released almost immediately on police citations. A much larger group—44 percent—was released within three hours after being taken to the “lockup,” and a third group was released within a period of thirteen to twenty-four hours after arrest. Many of the people in this group were released in court the morning after their arrest, at which time they were able to secure reductions in the amount of bond or contact a bondsman or family member to post bond; some pleaded guilty and were discharged from custody. However, 6 percent of the sample remained in pretrial custody for a period of two days or longer, and a small number were held three weeks or more.

Other arrestees secure delayed release because the lockup facility becomes overcrowded. On Saturday evenings police may “weed out” the lockup by granting PTA’s to Friday evening’s arrestees in order to make room for new arrivals. Women are housed in a separate facility in another location and are generally more likely to be released earlier on lower bond.

y Pretrial Release: Process

The Role of the Police

Although most students of the pretrial process focus on judicial bail setting at arraignment, their observations may often miss the mark, since in many jurisdictions—including New Haven—the bulk of the pretrial release decisions is made by other people before the accused is ever presented in court. In New Haven it is not the judge or the bail commissioner who dominates the release process, but rather the police. They are responsible not only for arresting and charging suspects, but also for releasing them before a trial. A number of observers have commented that Connecticut in general, and New Haven in particular, has liberal policies on pretrial release. They attribute these to the multi-layered system of decision and review, and the existence of bail commissioners. But in fact one cannot attribute these practices directly to this elaborate system. In fact, they probably have more to do with the intuitive judgments of the initial decision makers, the police.

Unless a suspect is released on a field citation at the site of an arrest, the arresting officer takes him to the central booking facility. After the booking, the officer is required by departmental order to com - plete a detailed bail interview form which seeks information about the arrestee’s ties to the community and other factors on which the release decision is to be based. The form also provides a space for reasons if the arrestee should not be released. Rarely is there anything that might be characterized as an “interview.” Only occasionally is the bail interview form completed in detail, and whatever information it does record is likely to have been filled in after a release decision has already been made. While different officers have different practices, most of them require little more than the accused’s name, address, and the charges being pressed before making a decision to release on PTA or a small bond.

If the charges are more serious, or if the arrestee has a prior record of arrests or failure to appear (and well over 50 percent do), then the officer may insist on a bond. In setting its amount, he often consults a “bail schedule.” This document, prepared by the Judicial Department and adopted by a resolution of all Circuit Court judges in 1967, specifies a monetary amount for each type of charge, and provides for “discounts,” depending upon the accused’s ties to the community.

Although officers setting the conditions of release must complete a section of the bail interview form which calls for a statement of reasons if an arrestee is not released immediately, this section is rarely filled out. In my review of over 100 bail interview forms for people who were not immediately released, only a handful—15 or so— had this section completed. Only occasionally did they specify that the arrestee was a “poor risk” because he had no local address, or because he had a record of failures to appear. Most of the reasons related instead to the police officer’s perception of the arrestee’s condition, which was often characterized as “abusive,” “threatening,” or “wants to return to the incident,” reasons which encouraged them to favor immediate situational justice or specific deterrence.

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Section 1 � The Process Is the Punishment 49

These officers are often in a dilemma. They are agents of the community, expected to enforce the law and make arrests. But then they must immediately turn around and release those very people whom they have just apprehended and arrested. It is not surprising that the tensions produced by these conflicting roles place a strain in the formal rules these people are charged with applying, and that they have taken advantage of the lax enforcement of the law to pursue their own conceptions of rough justice. Occasionally they use this detention power arbitrarily to administer their own system of punishment. Often they fear that an arrestee will return to a fight if he is released, so that they purposefully set bail beyond the arrestee’s means in order to detain him until they think he has calmed down. The statutes on release make no provision for this latter concern, and the police can pursue it only by ignoring the literal letter of the law. But in bending the law in this “reasonable” direction, the door is opened for justifications to bend it for other, less benign reasons. Police may impose situational sanctions on arrestees whom they think deserve to “sit in jail for a time” because the courts will just “let them out.”

y Securing an Attorney

A person accused of a criminal offense must decide whether or not to obtain an attorney. This seemingly simple choice in fact involves a complex set of decisions: whether or not to get a lawyer; and who to get, a public defender or a private attorney; if a private attorney, then which one? The decision is confusing and costly in terms of both time and money.

Private Counsel

Unless an arrestee has had prior experience with a particular lawyer and has been satisfied, he is confused about what to do, whom to call, if anyone, how much it will cost him, and whether the amount is reasonable. He is overly suspicious and afraid of being taken advantage of. Some arrestees will call an attorney with whose name he or his friends are familiar. Others may turn to other inmates or their captors—the police—for advice, or perhaps to a

bondsman. Still others, fearful of the expense, decide to do without representation.

If the arrestee telephones an attorney from the lockup, the attorney is likely to ask him a few questions about the charges, then ask to speak to the police officer in charge or contact a bail commissioner in an effort to get bond lowered to an amount the arrestee can make. After this he may contact a bondsman. If the arrestee secures his release before arraignment, the case is scheduled for a week or two later, and in the interim the attorney will arrange an appointment with his caller. If the arrestee is not released, the attorney will try to meet his prospective client just before arraignment in order to argue for bail reduction and afterward hold a brief conference to discuss financial terms and the case.

It is important that an attorney assess his would- be client’s ability to pay early on; once he has begun to represent a defendant, he is bound by the canon of ethics to continue representation until disposition. While it is possible to withdraw later from a case, it can be awkward and embarrassing. Most attorneys can relate instances of being “taken” by clients, and the result is a rather hardnosed approach to fees, even among the more liberal “client-oriented” attorneys who are frequently young, not well-established, and in particular need of the income.

Fees and billing practices vary widely from attorney to attorney and from case to case. Most private attorneys expect an initial retainer based on their own assessment of the “worth of the case.” As one private attorney observed:

I want to get enough at the outset, so that if I don’t get any more out of the case, I won’t get burned. This amount varies. For instance, I told a guy it would cost a minimum of five hundred to take his case—it was a messy child-molesting thing—and perhaps more, but that I wanted five hundred dollars to begin with. He later called and said he could come up with three hundred, and I said I would take it. So now, even if he can’t pay, I won’t get burned too badly. . . . I suppose as I pick up business, I’ll have to get tougher on this, but now I need the business and will take the chances. On a routine breach [of

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peace], or disorderly [conduct], I might very well take fifty dollars.

Although most attorneys bill clients based on the amount of time they spend—or say they spend—on a case (and all things being equal, they feel that the type of charge provides a rough indication of this), they also adjust this amount according to their assessment of their client’s ability to pay. Some attorneys are critical of such billing practices, but those who use them claim that they allow the better-off to subsidize the less fortunate.

Some attorneys have experimented with a flat fee for a case, which in one small firm is $300 for a case in the lower court and $1,000 for a case in upper court. But this means that those people whose cases are disposed of quickly after only one or two court appearances pay an extremely high per hour or per appearance cost, while those whose cases require considerable research, investigation, court appearances, or trial get a real bargain.

Public Defenders

In order to obtain a public defender a person must be poor. There are rather rigid guidelines for eligibility, but they are not strictly adhered to, and in fact most arrestees who apply for a PD routinely obtain one. There are several reasons for this. Perhaps most important is the prevailing belief among prosecutors, public defenders, and most judges that the formal guidelines are overly restrictive, and that by denying a person free counsel they are in effect denying him any counsel. As a consequence they may overlook an income ceiling or an obvious undervaluing of personal assets. Although some judges occasionally suggest it, few in fact seriously expect an applicant to sell his five-year-old automobile in order to raise an attorney’s fee.

A second reason is the drive for administrative efficiency. The application form requires detailed information about the applicant’s financial condition, and to verify all of it would require more effort than the PD is willing to extend in most cases. The PD’s staff finds it far easier to take the partial information at face value and recommend assignment of a PD knowing that errors will be made. They justified this by arguing

that it might permit a few more people to have a PD than deserve one, but at least it does not exclude those who do. In addition, PDs are reluctant to question or challenge ambiguous or inconsistent answers about income and assets, feeling that to do so would create an atmosphere of suspicion and hostility, and undercut their ability to gain the full confidence of their clients.

But it can still be difficult to obtain an attorney. In court, the prosecutor’s first question to an unrepresented defendant is: “Do you want to get your own attorney, apply for a public defender, or get your case over with today?” The very way the question is phrased encourages people not to seek counsel, and suggests preferential treatment if they plead guilty immediately. If someone asks for a PD, then he is shunted off for an interview to determine his eligibility, and the interview itself can become a humiliating experience.

In light of the consistently lenient sentences and the casual way in which so many cases linger on, it is understandable why many defendants do not obtain attorneys—public or private—at all, and when they do, why so many of them desire little more than a quick and perfunctory meeting with their attorneys.

y Continuances Although defendants usually want to get their cases over with as quickly as possible, they are not always successful. The court has its own pace, which is often at odds with the defendant’s self-interest. Defense attorneys and prosecutors usually turn (or return) their attentions to a case on the morning it is scheduled on the calendar, and if they are not able to resolve any differences before the calendar call, they will agree to a (or another) continuance. Problems which impede the resolution of a case can vary considerably, and a great many continuations stem from confu sion and carelessness. A defense attorney may have over - committed himself on that day, or in a more difficult case be unwilling to spend a few additional moments to track down a full-time prosecutor. Occasionally a defendant may appear in court only to find that his case is not on the calendar. Or the defense attorney may forget to show up. A court-ordered report such as a laboratory report on drugs may not have been completed, or a defendant’s file may simply be lost.

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Section 1 � The Process Is the Punishment 51

Whatever the reasons for delay, it may be two or three hours after the defendant has first taken his seat in the gallery before he is informed that his case will be continued. Rarely is this decision made in consultation with him or even with an appreciation of the problems it might involve for him. Unable to comprehend the details of court operations, most defendants are over- whelmed by the details of the processes. Rarely can they distinguish reasonable from unreasonable, careful from careless decisions, and they are left with generalized discontent and haunting suspicions.

But delay is not always the result of bumbling, and it is often a highly effective defense strategy. As one attorney observed:

We can make life difficult for the prosecutors by filing a lot of motions. . . . So when I push a legalistic line I am not expecting to have a complicated legal discourse; rather it’s part of my ammunition to secure my objectives. They know I’m serious and that I’ll spend a lot of time to pursue it. I’ll wear them down that way.

Motions may be filed one at a time, so that a case may be strung out over a long period. Strategic delay can also be secured by pleading not guilty and asking for a trial by jury. This request automatically provides a several-week (and at times a several-month) continuance, during which period the complainant may calm down or restitution can be arranged.

Because delay can be and often is an effective defense strategy, it can also be used successfully by a defense attorney to justify his own carelessness or actions performed for the sake of convenience. While public defenders may use it to cope with a pressing caseload, private attorneys may use it to boost their own fees or insure payment. In any case, all but the most knowledgeable of defendants will be unable to identify the real reasons for delay.

y Failure to Appear

The Causes of Nonappearance

For many arrestees the central question is not how to maneuver to reduce the chances of conviction,

a harsh sentence, or the number of court appeara - nces, but whether to show up in court at all. This consideration is not restricted to a small handful of “absconders” or would-be absconders; it concerns large numbers of arrestees. Roughly one-third of those in my sample missed one or more of their scheduled court appearances, and a substantial number (one person in five) never did return to court even after they received repeated letters of warning. While a number of these people had their cases terminated by a court action which called for a “bond forfeiture with no further action,” about one in every eight or nine cases was never formally resolved by the court in any way, and are filed as outstanding, closed only if and when the accused is arrested on other unrelated charges. Most of those who fail to appear (FTA) are charged with minor misdemeanors, but the problem is by no means restricted to them. A third of the FTAs were charged with the most serious class of misdemeanors, and fully 20 percent of them were charged with felonies. Both in terms of absolute numbers and the seriousness of the charges, failures to appear present a serious and continuing problem for the court.

Like other efforts, mine to identify predictors of appearance/nonappearance focused on characteristics of individual defendants. Yet the discussion above suggests that the label FTA itself is problematic because it depends in part on whether a bondsman is present in court to secure a continuance and whether a prosecutor is willing to make accommodations for those who step out of the courtroom momentarily. Furthermore, by focusing on the personal characteristics of the defendant we overlook the importance of organizational features in the court which may encourage nonappearance. People without attorneys may show up in court with the same frequency as those with attorneys, but because their cases are not called until late in the day some of them give up and go home, either because they are bored and irritated or because they think a recess is an adjournment. My observations of the court lead me to believe that nonappearance is more likely to be accounted for in terms of how well defendants understand the operations of the court (for example, are they in the correct courtroom?), how much respect they have for the court, how seriously they take the proceedings, how aware they are of their scheduled court appearances, and what they believe the

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consequences will be if they fail to appear. In other words, the interaction between the court organization and the accused is likely to provide the best explanation for appearance or nonappearance.

y Pretrial Diversion One way for an accused person to reduce the changes of conviction and postconviction penalty is to make an advance effort to “rehabilitate” himself. There are a variety of ways in which the accused can demonstrate this effort to the court. . . . One way is the Pretrial Diversion Program sponsored by the New Haven Pretrial Services Counsel. Representatives of this program approach new arrestees who meet its initial eligibility criteria, and offer them an opportunity to participate in its in-house group counseling program or to take advantage of its job placement services. If those who are accepted faithfully participate in these activities for a period of ninety days, then the program will recommend to the prosecutor that the charges be nolled.

Despite the seeming benefits which flow from this program, very few of the eligible arrestees take advantage of it. Estimates constructed from my sample indicated that over three-quarters of all arrestees met the program’s initial eligibility requirements, but of the 800 eligibles for whom data were available, only 19, or 2.3 percent of them, actually participated in the diversion program. Officials of the diversion program attempt to account for these low numbers by pointing to the prosecutor’s discretion to veto prospective participants who are otherwise eligible and interested. While these factors certainly limit the program’s size, there is another much more important reason for its limited effectiveness: arrestees consider participation in the program itself a penalty that is much more severe than the one they think they will receive if they do not participate.

One evaluation of the program attempted to estimate what might have happened to the pro - gram’s participants if they had not been “diverted.” Identifying a control group and tracing its path through the court, the researchers found that one-fifth to one-third of the “control group” obtained nolles or dismissals; most of them pleaded guilty and received

a small fine of $10 to $20. None of them went to jail. In short, they concluded tentatively, those people who are eligible but decline to enter the diversion program are not likely to be treated harshly by the court.

In contrast, people who do participate in the program must agree to participate in regularly scheduled meetings for a three-month period with no definite assurances that their cases will be nolled afterward. It is not surprising, then, that so many people pass up the diversion program.

y Conclusion: The Aggregated Effects of the Pretrial Process

The figures on pretrial costs presented in the preceding discussion are rough estimates and should not be interpreted as facts. Because they suggest comparisons between groups and costs which are themselves quite different, they must also be interpreted with caution. Still, these figures point to the inescapable conclusion that the costs of lower court—the tangible, direct, and immediate penalties extracted from those accused of minor criminal offenses—are not those factors which have received the greater attention from legal scholars, social scientists, or indeed court officials. Liberal legal theory directs attention to formal outcomes, to the conditions giving rise to the application of the criminal sanction at adjudication and sentence. Much social science research has followed this lead, searching for the causes of sanctioning at these stages. But this emphasis produces a distorted vision of the process and the sanctions it dispenses. The real punishment for many people is the pretrial process itself; that is why criminally accused invoke so few of the adversarial options available to them.

This inverted system of justice dramatizes the dilemma of lower courts. Expanded procedures designed to improve the criminal process are not invoked because they might be counterproductive. Efforts to slow the process down and make it truly deliberative might lead to still harsher treatment of defendants and still more time loss for complainants and victims. Devices designed to control official discretion do not perform their expected functions

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(the failure to litigate bail is a clear case-in-point). And whereas rapid and perfunctory practices foster error and caprice, they do reduce pretrial costs and in the aggregate may render rough justice.

In light of the pretrial costs and the actual penalties meted out in the lower court, one is tempted to scoff at the formal theory which so ineffectively governs official behavior in the lower court and to dismiss it as unworkable and overly elegant—as proceduralism run amok—for the types of petty problems presented to the court. Would not simple summary justice with a minimum of procedures provide a more appropriate and workable set of standards? Perhaps the police court magistrate meting out immediate kadi-like justice without reliance on defense counsel—but also without the need for bail, repeated court appearances, and the like—might be more satisfactory. Or perhaps community-based courts might be more adept at ferreting out the underlying causes of conflict and providing ameliorating responses.

In a great many cases these alternatives might work more effectively; yet the impulse for formality, even with its manifest shortcomings, cannot be so quickly dismissed. While lower courts sentence very few people to terms in jail, in theory almost all of those appearing before them face a slim possibility of incarceration. While creating a record of petty criminal offenses may not significantly affect the future of most people who find themselves before the bench, it can have a long-lasting and unpredictable impact on some. Citizenship can be placed in jeopardy, careers destroyed, aspirations dampened, delinquent propensities reinforced. Such problems may be few in number, but they do occur. And it is impossible to tell in advance which cases may precipitate these more serious consequences, since the specific impact of a record may not make itself felt until much later in life.

As long as conviction for petty criminal offenses carries the possibility of a jail sentence or of jeopardizing one’s future, the ideal of a formal,

adversarial process will remain strong and attractive even to those who acknowledge that the process itself is the punishment for most people. However, there may be some alternatives which both facilitate the rapid handling of petty cases and protect the interests of the accused.

y Notes

1. Over half the arrestees in my sample had a record of prior arrests by the New Haven police, and a large proportion of them had records of conviction. These figures are probably drastically low, however, since local authorities do not systematically obtain records from other jurisdictions, either within or outside the state.

2. Discussions of arrest and conviction frequently assume that arrestees have a great fear of the stigma of a conviction and will go to great lengths to avoid being formally labeled as criminals. But my observations are consistent with the findings of many criminologists who have studied juvenile delinquency and concluded that the disproportionate rate of criminal conduct by young lower-class males stems from a subculture which promotes such activity as a social mechanism for becoming a male adult. Rather than being a brand of inferiority for many lower- and working-class youths, arrest and conviction often reinforce the values of their subculture and can even enhance their status among their peers. This has been noted time and again in the literature on juvenile courts, but altogether overlooked and ignored in “adult” courts. See Walter B. Miller, “Lower Class Culture as a Generating Milieu of Gang Delinquency,” Journal of Social Issues 14 (1958): 5–19, and Albert K. Cohen, Delinquent Boys: The Culture of the Gang (New York: Free Press. 1955). Also see Edwin H. Sutherland and Donald Cressey, Principles of Criminology, 7th ed. (Philadelphia: J. B. Lippincott, 1966), pp. 183–199, and Richard Quinney, The Social Reality of Crime (Boston: Little Brown, 1970), pp. 207–276.

3. See Edward Banfield, The Unheavenly City (Boston: Little Brown, 1971), pp. 45–56; and Edward Banfield and James Q. Wilson, “Public Regardingness as a Value Premise in Voting Behavior,” American Political Science Review 58 (1964): 876–887.

4. Connecticut General Statute 54–63 (C) (A).

D I S C U S S I O N Q U E S T I O N S

1. Feeley noted that “the fear of arrest and conviction does not loom as large in the eyes of many people brought into court as it does in the eyes of middle-class researchers.” What explains this?

2. What are the “costs” of the pretrial process?

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3. What role do the police play in the pretrial release process? In what sense do the police pursue “their own conceptions of rough justice”?

4. Why do so few defendants charged with minor offenses obtain an attorney?

5. What are the “organizational features of courts” that encourage nonappearance for court hearings?

6. Why do so few defendants take advantage of pretrial diversion?

7. Explain why “the process is the punishment” in courts that adjudicate minor offenses. Would this also be the case in courts that adjudicate serious felonies? Why or why not?

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R E A D I N G

Some scholars argue that the upsurge in serious crime by juveniles, coupled with recent trends toward trying young offenders as adults, raises questions about the future of the juvenile court. Some have gone so far as to argue that the juvenile court, and even the juvenile justice system, should be abandoned altogether. This is the issue that Barry Feld, one of the foremost experts on the juvenile court, explores in the article, “The Honest Politician’s Guide to Juvenile Justice in the Twenty-First Century.” Feld argues that the juvenile court has been transformed “from a social welfare agency into a deficient criminal court.” He cites a number of substantive and procedural deficiencies of juvenile courts today and calls for the abolition of the juvenile court. He argues that the juvenile court should be replaced with an integrated criminal justice system that views the youth of the offender as a mitigating circumstance and that provides a “youth discount” at sentencing.

The Honest Politician’s Guide to Juvenile Justice in the Twenty-First Century

Barry C. Feld

The public and politicians perceive a significant and frightening increase in youth crime and violence. Concerns about the inability of juvenile courts to rehabilitate chronic and violent young offenders while simultaneously protecting public safety accompany the growing fear of youth crime. Sensational media

depictions of young criminals as a different breed of super-predators further heighten public anxiety. A desire to get tough, fueled in part by frustration with the intractability of crime, provides political impetus to crack down and transfer some young offenders to criminal courts for prosecution as adults and to

SOURCE: Originally published in 1994 in Annals, AAPSS, Vol. 564, pp. 10–27.

❖

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strengthen the sanctioning powers of juvenile courts for the remaining delinquents.

Within the past three decades, judicial decisions, legislative amendments, and administrative changes have transformed the juvenile court from a nominally rehabilitative social welfare agency into a scaled down, second-class criminal court for young offenders that provides them with neither therapy nor justice (Feld 1993a, 1997). This transformation occurred because of the migration of African Americans from the rural South to the urban North that began three-quarters of a century ago, the macrostructural transformation of American cities and the economy over the past quarter of a century, and the current linkages in the popular and political culture between race and serious youth crime (Feld 1998). Two competing cultural and legal conceptions of young people have facilitated the transformation. On the one hand, legal culture views young people as innocent, vulnerable, fragile, and dependent children whom their parents and the state should protect and nurture. On the other hand, the legal culture perceives young people as vigorous, autonomous, and responsible almost adultlike people from whose criminal behavior the public needs protection.

The ambivalent and conflicted jurisprudence of youth enables policy makers selectively to manipulate the competing social constructs of innocence and responsibility to maximize the social control of young people. Over the past three decades, juvenile justice legal reforms have engaged in a process of criminological triage. At the soft end of juvenile courts’ jurisdiction, reforms have shifted noncriminal status offenders out of the juvenile justice system into a hidden system of social control in the private sector mental health and chemical dependency industries. At the hard end of juvenile courts’ jurisdiction, states transfer increasing numbers of youths into the criminal justice system for prosecution as adults. Juvenile court sentencing policies and practices escalate the punishments imposed on those delinquents who remain in an increasingly criminalized juvenile justice system.

In this article, I briefly describe the transformation of the juvenile court from a social welfare agency into a deficient criminal court. Second, I argue that juvenile courts’ underlying idea is fundamentally flawed because in it the courts attempt to combine social welfare and penal social control in one agency. Because welfare and control functions embody inherent and irreconcilable contradictions, juvenile courts inevitably do both badly. If a state separates social welfare goals from criminal social control functions, then no need remains for a separate juvenile court. Rather, a state could try all offenders in one integrated criminal justice system. But children do not possess the same degree of criminal responsibility as adults. Adolescent developmental psychology, criminal law jurisprudence, and sentencing policy provide a rationale to formally recognize youthfulness as a mitigating factor when judges sentence younger offenders. A “youth discount” provides a sliding scale of criminal responsibility for younger offenders who have not quite learned to be responsible or developed fully their capacity for self-control. Combining enhanced procedural safeguards with formal mitigation of sentences provides youths with greater protections and justice than they currently receive in either the juvenile or criminal justice systems.

y The Juvenile Court The juvenile court is the byproduct of changes in two cultural ideas that accompanied modernization and industrialization a century ago: childhood and social control. Social structural changes associated with the shift from an agricultural to an urban industrial society, and the separation of work from the home, produced a new social construction of children as innocent, dependent, and vulnerable (Ainsworth 1991). Progressive child savers used the new imagery of childhood to advance a number of reform agendas: compulsory school attendance, child labor, and child welfare laws. A more modern, scientific conception of social control embraced positivist criminology and medical analogies to treat offenders rather than to punish them for their offenses. Positivism attempted to

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identify the antecedent variables that caused crime and deviance and challenged the classic formulation of crime as the product of blameworthy, free-will choices (Allen 1964, 1981). By attributing criminal behavior to external and deterministic forces, Progressive reformers reduced an actor’s moral responsibility for crime and focused on efforts to reform rather than to punish the offender. The juvenile court combined the new conception of children with new strategies of social control to produce a judicial-welfare alternative to criminal justice, to remove children from the adult process, to enforce the newer conception of children’s dependency, and to substitute the state as parens patriae. The juvenile court’s rehabilitative ideal rested on several sets of assumptions about positive criminology, children’s malleability, and the availability of effective intervention strategies to act in the child’s best interests.

Procedure and substance intertwined in the juvenile court. Procedurally, juvenile courts used informal processes, conducted confidential hearings, and employed a euphemistic vocabulary to obscure and disguise the reality of coercive social control. Substantively, juvenile courts used indeterminate, nonproportional dispositions, emphasized treat - ment and supervision rather than punishment, and purportedly focused on offenders’ future welfare rather than past offenses. Despite their benevolent rhetoric, however, the Progressive child savers who created the juvenile court deliberately designed it to discriminate, to Americanize immigrants and the poor, and to provide a coercive mechanism to distinguish between “our children” and “other people’s children.”

In their pursuit of the rehabilitative ideal, the Progressives situated the juvenile court on a number of cultural, legal, and criminological fault lines. They created several binary conceptions for the juvenile and criminal justice systems: either child or adult; either determinism or free will; either dependent or responsible; either treatment or punishment; either welfare or deserts; either procedural informality or formality; either discretion or the rule of law. The past three decades have witnessed a tectonic shift from the former to the latter of each of these pairs in response to

the structural and racial transformation of cities, the rise in serious youth crime, and the erosion of the rehabilitative assumptions of the juvenile court.

y The Transformation of the Juvenile Court

During the 1960s, the Warren Court’s civil rights decisions, criminal due process rulings, and “constitutional domestication” of the juvenile court responded to broader structural and demographic changes taking place in America, particularly those associated with race and youth crime (Feld 1999). In the decades prior to and after World War II, black migration from the rural South to the urban North increased minority concentrations in urban ghettos, made race a national rather than a regional issue, and provided the impetus for the civil rights movement (Lemann 1992). The 1960s also witnessed the baby boom increases in youth crime that continued until the late 1970s. During the 1960s, the rise in youth crime and urban racial disorders provoked cries for “law and order” and provided the initial political impetus to get tough. Republicans seized crime control and welfare as wedge issues with which to distinguish themselves from Democrats, and crime policies for the first time became a central issue in partisan politics (Beckett 1997). As a result of sound- bite politics, symbols and rhetoric have come to shape penal policies more than knowledge or substance has. Since the 1960s, politicians’ fear of being labeled soft on crime has led to a constant ratcheting-up of punitiveness.

The Supreme Court’s due process decision responded to the macro-structural and demographic changes and attempted to guarantee civil rights, to protect minority citizens, and to limit the authority of the state. In re Gault (387 U.S. 1 [1967]) began to transform the juvenile court into a very differ - ent institution from that which the Progressives contemplated. In re Gault demonstrated the linkage between procedure and substance in the juvenile court and engrafted some formal procedures at trial onto the individualized treatment schema (Feld

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1984). Although the Court did not intend its decisions to alter juvenile courts’ therapeutic mission, in the aftermath of In re Gault, judicial, legislative, and administrative changes have fostered a procedural and substantive convergence with criminal courts (Feld 1993a, 1997). In re Gault shifted the focus of delinquency hearings from real needs to proof of legal guilt and formalized the connection between criminal conduct and coercive intervention. Providing a modicum of procedural justice also legitimated greater punitiveness in juvenile courts. Thus In re Gault’s procedural reforms provided the impetus for the substantive convergence between juvenile and criminal courts, so that today juvenile courts constitute a wholly owned subsidiary of the criminal justice system. It is a historical irony that race provided the initial impetus for the Supreme Court to expand procedural rights to protect minority youths’ liberty interests, and now juvenile courts impose increasingly punitive sentences disproportionately on minority offenders. In McKeiver v. Pennsylvania (403 U.S. 528 [1971]), however, the Court denied to juveniles the constitutional right to jury trials in delinquency proceedings. McKeiver relied on the purported differences between juvenile courts’ treatment and criminal courts’ punishment to justify the procedural distinctions between the two systems.

Juvenile Courts’ Procedural Deficiencies

Unfortunately, In re Gault constituted an incomplete procedural revolution, and a substantial gulf still remains between the law on the books and the law in action. States continue to manipulate the fluid concepts of children and adults, or treatment and punishment in order to maximize the social control of young people. On the one hand, states treat juveniles just like adults when formal equality results in practical inequality. For example, states use the adult standard of “knowing, intelligent, and voluntary under the totality of the circumstances” to gauge juveniles’ waivers of rights (Fare v. Michael C., 442 U.S. 707 [1979]; Feld 1984), even though juveniles lack the legal

competence of adults. Research on juveniles’ waivers of Miranda rights (Grisso 1980) and waivers of their right to counsel provide compelling evidence of the procedural deficiencies of the juvenile court (Feld 1989, 1993b). On the other hand, even as juvenile courts have become more punitive, most states continue to deny juveniles access to jury trials or other rights guaranteed to adults (Feld 1988, 1995). Juvenile courts provide a procedural regime in which few adults charged with crimes and facing the prospect of confinement would consent to be tried.

Criminological Triage

Simultaneously, juvenile courts’ increased procedural formality have provided the impetus to adopt substantive criminological triage policies. This process entails diverting status offenders out of the juvenile system at the soft end, waiving serious offenders for adult criminal prosecution at the hard end, and punishing more severely the residual, middle range of ordinary delinquent offenders.

At the soft end, judicial and legislative disillusionment with juvenile courts’ responses to noncriminal youths have led to diversion, deinstitutionalization, and decriminalization reforms (Feld 1993a, 1998). Deinstitutionalization reduced access to secure facilities for noncriminal offenders and provided the impetus to transfer many white, female, and middle-class youths whom juvenile courts formerly handled as status offenders into the private sector system of mental health and chemical dependency treatment and confinement (Schwartz 1989).

At the hard end, states transfer more juveniles to criminal courts. As a result of recent get-tough laws, judges, prosecutors, and legislators waive increasing numbers of younger offenders to criminal courts for prosecution as adults. The rate of judicial waiver increased 68 percent between 1988 and 1992 (Snyder and Sickmund 1995). Prosecutors in Florida alone transfer more juveniles to criminal court than do all of the juvenile court judges in the country together (Bishop and Frazier 1991). In an effort to crack down on youth crime, legislators exclude various

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combinations of age and offenses from juvenile courts’ jurisdiction and then further expand the lists of excluded offenses and reduce the age of criminal responsibility.

The get-tough juvenile justice policies of the early 1990s reflect macrostructural, economic, and racial demographic changes in cities during the 1970s and 1980s; the emergence of the black underclass; and the rise in gun violence and youth homicides (Massey and Denton 1993; Blumstein 1995). Between World War II and the early 1970s, semiskilled high school graduates could get well-paying jobs in the automobile, steel, and construction industries. Beginning in the 1970s, the transition from an industrial to an information and service economy reduced employment opportunities in the manufacturing sectors and produced a bifurcation of economic opportunities based on skills and education. During the post–World War II period, government highway, housing, and mortgage policies encouraged suburban expansion (Massey and Denton 1993). The migration of whites to the suburbs, the growth of information and service jobs in the suburbs, the bifurcation of the economy, and the deindustrialization of the urban core increased racial segregation and the concentration of poverty among blacks in the major cities (Wilson 1987, 1996). In the mid-1980s, the emergence of a structural underclass, the introduction of crack cocaine into the inner cities, and the proliferation of guns among youths produced a sharp escalation in black youth homicide rates (Blumstein 1995). The age-offense-race-specific increase in youth homicide provided further political impetus to get tough and to crack down on youth crime. In this context, because of differences in rates of offending by race, getting tough on violence meant targeting young black men. As a result of the connection in the public and political minds between race and youth crime, juveniles have become the symbolic Willie Horton of the 1990s (Beckett 1997).

These get-tough waiver policies reflect juvenile courts’ broader jurisprudential changes from rehabilitation to retribution. The overarching themes of these legislative amendments include a shift from

individualized justice to just deserts, from offender to offense, from “amenability to treatment” to public safety, and from immature delinquent to responsible criminal. State legislatures use offense criteria in waiver laws as dispositional guidelines either to structure and limit judicial discretion, to guide prosecutorial charging decisions, or automatically to exclude certain youths from juvenile court jurisdiction (Feld 1987, 1995; Torbet et al. 1996).

These trends in waiver policy also reflect a fundamental cultural and legal recon ceptualization of youth from innocent and dependent to responsible and autonomous. Politicians’ sound bites, like “adult crime/adult time,” reflect typical criminal policies that provide no formal recognition of youthfulness as a mitigating factor in sentencing. Once youths make the transition to the adult system, criminal court judges sentence them as if they are adults, impose the same sentences, send them to the same prisons, and even inflict capital punishment on them for the crimes they committed as children (Feld 1998; Stanford v. Kentucky, 492 U.S. 361 [1989]).

State legislators adopt social control policies within a binary framework: either child or adult, either treatment or punishment, either juvenile court or criminal court. Unfortunately, jurisdictional bifurcation frustrates effective and rational social control and often results in a punishment gap when youths make the transition between the two systems. While violent young offenders receive dramatically more severe sentences as adults than they would have received as juveniles, chronic property offenders who constitute the bulk of youths judicially transferred actually get shorter sentences as adults than they would have obtained as delinquents had they remained within the juvenile system (Podkopacz and Feld 1995, 1996). Many of the recent changes in waiver laws represent an effort to improve the fit between waiver criteria and criminal court sentencing practices, to use juvenile prior records more extensively to enhance the sentences of young adult offenders, and to respond to career offenders and career criminality that begins in early adolescence but continues into adulthood (Feld 1998). Efforts to integrate juvenile and criminal

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court sentencing practices and records represent an effort to rationalize social control of serious and chronic offenders on both sides of the juvenile and criminal court line. The recent emergence of blended jurisdiction laws, intermediate sentencing options like extended jurisdiction prosecutions, and blended juvenile-criminal sentences provide examples of states’ groping toward graduated, escalating sanctions for young offenders across the adolescent and criminal career developmental continuum (Feld 1995, 1998; Torbet et al. 1996).

Finally, the criminological triage process has resulted in increased punishment of those ordinary delinquents who remain within the jurisdiction of the juvenile justice system (Feld 1988; Sheffer 1995). Legislative preambles and court opinions explicitly endorse punishment as an appropriate component of juvenile sanctions. States’ juvenile sentencing laws increasingly emphasize responsibility and accountability and provide for determinate and/or mandatory minimum sentences keyed to the seriousness of the offense (Sheffer 1995; Feld 1998; Torbet et al. 1996). These statutory provisions use principles of proportionality and determinacy to rationalize sentencing decisions, to increase the penal bite of juvenile sanctions, and to allow legislators symbolically to demonstrate their toughness.

Two general conclusions emerge clearly from empirical research evaluating juvenile court judges’ sentencing practices. First, the “principle of offense”— present offense and prior record—accounts for most of the variance in juvenile court sentences that can be explained. Every methodologically rigorous study of juvenile court sentencing practices reports that judges focus primarily on the seriousness of the present offense and prior record when they sentence delinquents (Feld 1998). Second, after controlling for legal and offense variables, the individualized justice of juvenile courts produces racial disparities in the sentencing of minority offenders (Bishop and Frazier 1996). According to the juvenile court’s treatment ideology, judges’ discretionary decisions should disproportionally affect minority youths, because the Progressives intended judges to focus on youths’ social circumstances rather than simply their offenses and

designed them to discriminate between “our children” and “other people’s children.”

Evaluating juvenile correctional facilities for their effectiveness provides another indicator of the increased punitiveness of juvenile justice. Evaluations of juvenile correctional facilities in the decades following In re Gault reveal a continuing gap between the rhetoric of rehabilitation and the punitive reality (Feld 1977, 1981). Criminological research, judicial opinions, and investigative studies report staff beatings of inmates, the use of drugs for social control purposes, extensive reliance on solitary confinement, and a virtual absence of meaningful rehabilitative programs (Feld 1998; Parent et al. 1994). Despite rehabilitative rhetoric and a euphemistic vocabulary, the simple truth is that juvenile court judges increasingly consign disproportionately minority offenders to overcrowded custodial warehouses that constitute little more than youth prisons.

Evaluations of juvenile treatment programs provide little evidence that training schools, the most common form of institutional treatment for the largest numbers of serious and chronic delinquents, effectively treat youths or reduce their recidivism rates (Feld 1998). Despite these generally negative results, proponents of the traditional juvenile court continue their quest for the elusive rehabilitative grail and offer literature reviews, meta-analyses, or program descriptions that report that some interventions produce positive effects on selected clients under certain conditions. A recent comprehensive meta- analysis of 200 studies of interventions with serious juvenile offenders reported, “The average intervention effect for these studies was positive, statistically significant, and equivalent to a recidivism reduction of about 6 percentage points, for example, from 50% to 44%” (Lipsey and Wilson 1998, 330). Typically, positive treatment effects appear in small, experimental programs that provide an intensive and integrated response to the multitude of problems that delinquent youths present. Favorable results occur primarily under optimal conditions, for example, when mental health or other nonjuvenile correctional personnel provide services with high treatment integrity in well-established programs.

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Even though some programs apparently are successful for some offenders under some circum - stances and produce marginal improvements in the life chances of some juveniles, most states do not elect to provide these programs or services to delinquents generally. Rather, they confine most delinquents in euphemistically sanitized youth prisons with fewer procedural safeguards than adults enjoy. Thus, even if model programs can reduce recidivism rates, public officials appear unwilling to provide such treatment services when they face fiscal constraints, budget deficits, and competition from other, more politically potent interest groups. Organizational imperatives to achieve economies of scale mandate confining ever larger numbers of youths and thereby preclude the possibility of matching offenders with appropriate treatment programs.

y The Inherent Contradictions of the Juvenile Court

Juvenile courts punish rather than treat young offenders and use a procedural regime under which no adult would consent to be tried. The fundamental shortcoming of the juvenile court’s welfare idea reflects a failure of conception and not simply a century-long failure of implementation. The juvenile court’s creators envisioned a social service agency in a judicial setting and attempted to fuse its welfare mission with the power of state coercion. Combining social welfare and penal social control functions in one agency ensures that juvenile courts do both badly. Providing for child welfare represents a societal responsibility rather than a judicial one. Juvenile courts lack control over the resources necessary to meet child welfare needs exactly because of the social class and racial characteristics of their clients and because of the public’s fear of “other people’s children.” In practice, juvenile courts almost inevitably subordinate welfare concerns to crime control considerations.

If we formulated child welfare programs ab initio, would we choose a juvenile court as the most appropriate agency through which to deliver social services, and would we make criminality a condition precedent to the receipt of services? If we would not initially choose a court to deliver social services, then does the fact of a youth’s criminality confer upon the court any special competency as a welfare agency? Many young people who do not commit crimes desperately need social services, and many youths who commit crimes do not require or will not respond to social services. In short, criminality represents an inaccurate and haphazard criterion upon which to allocate social services. Because our society denies adequate help and assistance to meet the social welfare needs of all young people, juvenile courts’ treatment ideology serves primarily to legitimate judicial coercion of some youths because of their criminality.

The attempt to combine social welfare and crimi - nal social control in one agency constitutes the fundam - ental flaw of the juvenile court. The juvenile court subordinates social welfare concerns to criminal social control functions because of its inherently penal focus. Legislatures do not define juvenile courts’ jurisdiction on the basis of characteristics of children for which the children are not responsible and for which effective intervention could improve their lives. For example, juvenile court law does not define eligibility for welfare services or create an enforceable right or entitlement based upon young people’s lack of access to quality education, lack of adequate housing or nutrition, unmet health needs, or impoverished families—none of which are their fault. In all of these instances, children bear the burdens of their parents’ circumstances literally as innocent bystanders. Instead, states’ juvenile codes define juvenile court jurisdiction based upon a youth’s committing a crime, a prerequisite that detracts from a compassionate response. Unlike disadvantaged social conditions that are not their fault, criminal behavior represents the one characteristic for which adolescent offenders do bear at least partial responsibility. In short, juvenile courts define eligibility for services on the basis of the feature least likely to elicit sympathy and compassion, and they ignore the social structural

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conditions or personal circumstances more likely to evoke a greater desire to help. Juvenile courts’ defining characteristic strengthens public antipathy to “other people’s children” by emphasizing primarily that they are law violators. The recent criminological triage policies that stress punishment, accountability, and personal responsibility further reinforce juvenile courts’ penal foundations and reduce the legitimacy of youths’ claims to humanitarian assistance.

y The Kid Is a Criminal, and the Criminal Is a Kid

States should uncouple social welfare from social control, try all offenders in one integrated criminal justice system, and make appropriate substantive and procedural modifications to accommodate the youthfulness of some defendants. Substantive justice requires a rationale to sentence younger offenders differently from and more leniently than older defendants, a formal recognition of youthfulness as a mitigating factor. Procedural justice requires providing youths with full procedural parity with adult defendants and additional safeguards to account for the disadvantage of youth in the justice system. These substantive and procedural modifications can avoid the worst of both worlds, provide youths with protections functionally equivalent to those accorded adults, and do justice in sentencing.

My proposal to abolish juvenile courts constitutes neither an unqualified endorsement of punishment nor a primitive throwback to earlier centuries’ vision of children as miniature adults. Rather, it honestly acknowledges that juvenile courts currently engage in criminal social control, asserts that younger offenders in a criminal justice system deserve less severe penalties for their misdeeds than do more mature offenders simply because they are young, and addresses many problems created by trying to maintain dichotomous and contradictory criminal justice systems based on an arbitrary age classification of a youth as a child or as an adult (Feld 1997).

Formulating a sentencing policy when the kid is a criminal and the criminal is a kid entails two tasks.

First, I will provide a rationale for sentencing younger offenders differently from and more leniently than adult offenders. Explicitly punishing younger offenders rests on the premise that adolescents possess sufficient moral reasoning, cognitive capacity, and volitional control to hold them partially responsible for their behavior, albeit not to the same degree as adults. Developmental psychological research, jurisprudence, and criminal sentencing policy provide the rationale for why young offenders deserve less severe consequences for their misdeeds than do older offenders and justify formal recognition of youthfulness as a mitigating factor. Second, I will propose a youth discount—shorter sentences for reduced responsibility—as a practical administrative mechanism to implement youthfulness as a mitigating factor in sentencing.

The idea of deserved punishment entails censure and condemnation for making blameworthy choices and imposes sanctions proportional to the seriousness of a crime (von Hirsch 1976, 1993). Two elements—harm and culpability—define the seriousness of a crime. A perpetrator’s age has relatively little bearing on assessments of harm—the nature of the injury inflicted, risk created, or value taken. But evaluations of seriousness also entail the quality of the actor’s choice to engage in the criminal conduct that produced the harm. Youthfulness is a very important factor with respect to the culpability of a criminal actor because it directly affects the quality of choices. Responsibility for choices hinges on cognitive and volitional competence. Youths differ socially, physically, and psychologically from adults: they have not yet fully internalized moral norms, developed sufficient empathic identification with others, acquired adequate moral comprehension, or had sufficient opportunity to develop the ability to restrain their actions. They possess neither the rationality (cognitive capacity) nor the self-control (volitional capacity) for their criminal responsibility to be equated fully with that of adults. In short, their immaturity affects the quality of their judgments in ways that are relevant to criminal sentencing policy. Ultimately, a youth sentencing policy should enable

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young offenders to survive the mistakes of adolescence with their life chances intact.

Adolescence as a Form of Reduced Culpability

Certain characteristic developmental differences distinguish the quality of decisions that young people make from the quality of decisions by adults, and justify a somewhat more protective stance when states sentence younger offenders. Psychosocial maturity, judgment, and temperance provide conceptual prisms through which to view adolescents’ decision-making competencies and to assess the quality of their choices (Cauffman and Steinberg 1995; Steinberg and Cauffman 1996; Scott 1992; Scott and Grisso 1997). Adolescents and adults differ in the quality of judgment and self-control they exercise because of relative differences in breadth of experience, short-term versus long- term temporal perspectives, attitudes toward risk, impulsivity, and the importance they attach to peer influences. These developmentally unique attributes affect youths’ degree of criminal responsibility. Young people are more impulsive, exercise less self-control, fail adequately to calculate long-term consequences, and engage in more risky behavior than do adults. Adolescents may estimate the magnitude or probability of risks, may use a shorter time frame, or may focus on opportunities for gains rather than possibilities of losses differently from adults (Furby and Beyth-Marom 1992). Young people may discount the negative value of future consequences because they have more difficulty than adults in integrating a future consequence into their more limited experiential baseline (Gardner and Herman 1990). Adolescents’ judgments may differ from those of adults because of their disposition toward sensation seeking, impulsivity related to hormonal or physiological changes, and mood volatility (Steinberg and Cauffman 1996; Cauffman and Steinberg 1995). Adolescents respond to peer group influences more readily than do adults because of the crucial role that peer relationships play in identity formation (Scott 1992; Zimring 1981). Most adolescent crime occurs in a group context, and having delinquent friends precedes an adolescent’s own criminal involvement (Elliott and

Menard 1996). Group offending places normally lawabiding youths at greater risk of involvement and reduces their ability publicly to withdraw. Because of the social context of adolescent crime, young people require time, experience, and opportunities to develop the capacity for autonomous judgments and to resist peer influence.

Developmental processes affect adolescents’ quality of judgment and self-control, directly influence their degree of criminal responsibility and deserved punishment, and justify a different criminal sentencing policy. While young offenders possess sufficient understanding and culpability to hold them accountable for their acts, their crimes are less blameworthy than adults’ because of reduced culpability and limited appreciation of consequen - ces and also because their life circumstances understandably limit their capacity to learn to make fully responsible choices.

When youths offend, the families, schools, and communities that socialize them bear some responsibility for the failures of those socializing institutions. Human beings depend upon others to nurture them and to enable them to develop and exercise the moral capacity for constructive behavior. The capacity for self-control and self-direction is not simply a matter of moral luck or good fortune but a socially constructed developmental process that provides young people with the opportunity to develop a moral character. Community structures affect social conditions and the contexts within which adolescents grow and interact with peers. Unlike presumptively mobile adults, juveniles, because of their dependency, lack the means or ability to escape from their criminogenic environments.

Zimring (1982) describes the “semi-autonomy” of adolescence as a “learner’s permit” that gives youths the opportunity to make choices and to learn to be responsible but without suffering fully the long- term consequences of their mistakes. The ability to make responsible choices is learned, and the dependent status of youth systematically deprives adolescents of chances to learn to be responsible. Young people’s socially constructed life situation understandably limits their capacity to develop self-control, restricts their opportunities to learn and

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exercise responsibility, and supports a partial reduction of criminal responsibility. A youth sentencing policy would entail both shorter sentences and a higher offense-seriousness threshold before a state incarcerates youths than for older offenders.

Youth Discount

The binary distinctions between children and adults that provide the basis for states’ legal age of majority and the jurisprudential foundation of the juvenile court ignore the reality that adolescents develop along a continuum, and create an unfortunate either-or forced choice in sentencing. By contrast, shorter sentences for reduced responsibility represent a more modest and readily attainable reason to treat young offenders differently from adults than the rehabilitative justifications advanced by Progressive child savers. Protecting young people from the full penal consequences of their poor decisions reflects a policy to preserve their life chances for the future, when they presumably will make more mature and responsible choices. Such a policy both holds young offenders accountable for their acts because they possess sufficient culpability and mitigates the severity of consequences because their choices entail less blame than those of adults.

Sentencing policy that integrates youthfulness, reduced culpability, and restricted opportunities to learn self-control with penal principles of proportionality would provide younger offenders with categorical fractional reductions of adult sentences. If adolescents as a class characteristically make poorer choices than adults, then sentencing policies should protect young people from the full penal consequences of their bad decisions. Because youthfulness constitutes a universal form of reduced culpability or diminished responsibility, states should treat it categorically as a mitigating factor, with - out regard to nuances of individual developmental differences. Youth development is a highly variable process, and chronological age is a crude, imprecise measure of criminal maturity and the opportunity to develop the capacity for self-control. Despite the variability of adolescence, however, a categorical youth discount that uses age as a conclusive proxy for

reduced culpability and shorter sentences remains preferable to any individualized inquiry into the criminal responsibility of each young offender. Developmental psychology does not possess reliable clinical indicators of moral development that equate readily with criminal responsibility and accountability. For young criminal actors who are responsible, to some degree, clinical testimony to precisely tailor sanctions to culpability is not worth the burden or diversion of resources that the effort would entail. Because youthful mitigated criminal responsibility is a legal concept, there simply is no psychiatric analogue to which clinical testimony would correspond. Rather, a youth discount categorically recognizes that criminal choices by young people are to some degree qualitatively different from those of adults and constitute a form of partial responsibility without any additional clinical indicators.

This categorical approach would take the form of an explicit youth discount at sentencing, a sliding scale of criminal responsibility. A 14-year-old offender might receive, for example, 25–33 percent of the adult penalty; a 16-year-old defendant, 50–66 percent; and an 18-year-old adult, the full penalty, as currently occurs (Feld 1997). The deeper discounts for younger offenders correspond to the developmental continuum and their more limited opportunities to learn to be responsible and to exercise self-control. Because reduced culpability provides the rationale for youthful mitigation, younger adolescents bear less responsibility and deserve proportionally shorter sentences than older youths. With the passage of time, increased age, and more numerous opportunities to develop the capacity for self-control, social tolerance of criminal deviance and claims for youthful mitigation decline. Discounted sentences that preserve younger offenders’ life chances require that the maximum sentences they receive remain very substantially lower than those imposed on adults. Capital sentences and draconian manda - tory minimum sentences—for example, life without parole—have no place in sentencing presumptively less blameworthy adolescents. Because of the rapidity of adolescent development and the life-course- disruptive consequences of incarceration, the rationale for a youth discount also supports requiring

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a higher in/out threshold of offense seriousness and culpability as a prerequisite for imprisonment.

Only states whose criminal sentencing laws provide realistic, humane, and determinate sentences that enable a judge actually to determine real-time sentences can readily implement a proposal for explicit fractional reductions of youths’ sentences. One can know the value of a youth discount only in a sentencing system in which courts know in advance the standard, or going rate, for adults. In many jurisdictions, implementing a youth discount would require significant modification of the current sentencing laws, including adoption of presumptive sentencing guidelines with strong upper limits on punishment severity, elimination of all mandatory minimum sentences, and introduction of some structured judicial discretion to mitigate penalties based on individual circumstances. Attempts to apply youth discounts idiosyncratically within the flawed indeterminate or mandatory-minimum sentencing regimes that currently prevail in many jurisdictions runs the risk of simply reproducing all of their existing inequalities and injustices.

y Virtues of an Integrated Criminal Justice System

A graduated age-culpability sentencing scheme in an integrated criminal justice system avoids the inconsistencies associated with the binary either- juvenile-or-adult drama currently played out in judicial waiver proceedings and in prosecutorial charging decisions, and it introduces proportionality to the sentences imposed on the many youths currently tried as adults. It also avoids the punishment gap when youths make the transition from one justice system to the other, and it ensures similar consequences for similarly situated offenders. Adolescence and criminal careers develop along a continuum; the current bifurcation between the two justice systems confounds efforts to respond consistently to young career offenders. A sliding scale of criminal sentences based on an offender’s age as a proxy for culpability accomplishes simply and directly what the various blended-jurisdiction statutes attempt to achieve indirectly (Feld 1995). A

formal policy of youthfulness as a mitigating factor avoids the undesirable forced choice between inflicting undeservedly harsh penalties on less culpable actors and doing nothing about the manifestly guilty.

An integrated justice system also allows for integrated record keeping and enables officials to identify and respond to career offenders more readily than the current jurisdictional bifurcation permits. Even adolescent career offenders deserve enhanced sentences based on an extensive record of prior offending. But an integrated justice system does not require integrated prisons. The question of how long differs from questions of where and what. States should maintain age-segregated youth correctional facilities both to protect younger offenders from adults and to protect geriatric prisoners from younger inmates. Virtually all young offenders will return to society, and the state should provide them with resources for self- improvement because of its basic responsibility to its citizens and its own self-interest. A sentencing and correctional policy must offer youths room to reform and provide opportunities and resources to facilitate young offenders’ constructive use of their time.

Finally, affirming partial responsibility for youth constitutes a virtue. The idea of personal responsibility and accountability for behavior provides an impor - tant cultural counterweight to a popular culture that endorses the idea that everyone is a victim, that all behavior is determined, and that no one is responsible. The juvenile court elevated determinism over free will, characterized delinquents as victims rather than perpetrators, and subjected them to an indeterminate quasi-civil commitment process. The juvenile court’s treatment ideology denied youths’ personal responsibility, reduced offenders’ duty to exercise self- control, and eroded their obligations to change. If there is any silver lining in the current cloud of get-tough policies, it is the affirmation of responsibility. A culture that values autonomous individuals must emphasize both freedom and responsibility. A criminal law that bases sentences on blameworthiness and responsibility must recognize the physical, psychological, and socially constructed differences between youths and adults. Affirming responsibility forces politicians to be honest when the kid is a criminal and the criminal is a kid. The

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real reason states bring young offenders to juvenile courts is not to deliver social services but because the offenders committed a crime. Once politicians recognize that simple truth, then justice can follow.

y References Ainsworth, Janet E. 1991. Re-imagining Childhood and Re-

constructing the Legal Order: The Case for Abolishing the Juvenile Court. North Carolina Law Review 69:1083–133.

Allen, Francis A. 1964. Legal Values and the Rehabilitative Ideal. In The Borderland of the Criminal Law: Essays in Law and Criminology. Chicago: University of Chicago Press.

———. 1981. Decline of the Rehabilitative Ideal. New Haven, CT: Yale University Press.

Beckett, Katherine. 1997. Making Crime Pay: Law and Order in Contemporary American Politics. New York: Oxford University Press.

Bishop, Donna and Charles Frazier. 1991. Transfer of Juvenile to Criminal Court: A Case Study and Analysis of Prosecutorial Waiver. Notre Dame Journal of Law, Ethics & Public Policy 5:281–302.

———. 1996. Race Effects in Juvenile Justice Decision- Making: Findings of a Statewide Analysis. Journal of Criminal Law & Criminology 86:392–413.

Blumstein, Alfred. 1995. Youth Violence, Guns, and the Illicit- Drug Industry. Journal of Criminal Law & Criminology 86:10–36.

Cauffman, Elizabeth and Laurence Steinberg. 1995. The Cognitive and Affective Influences on Adolescent Decision-Making. Temple Law Review 68:1763–89.

Elliott, Delbert and Scott Menard. 1996. Delinquent Friends and Delinquent Behavior: Temporal and Developmental Patterns. In Delinquency and Crime: Current Theories, ed. J. David Hawkins. New York: Cambridge University Press.

Feld, Barry C. 1977. Neutralizing Inmate Violence: Juvenile Offenders in Institutions. Cambridge, MA: Ballinger.

———. 1981. A Comparative Analysis of Organizational Structure and Inmate Subcultures in Institutions for Juvenile Offenders. Crime & Delinquency 27:336–63.

———. 1984. Criminalizing Juvenile Justice: Rules of Procedure for Juvenile Court. Minnesota Law Review 69:141–276.

———. 1987. Juvenile Court Meets the Principle of Offense: Legislative Changes in Juvenile Waiver Statutes. Journal of Criminal Law & Criminology 78:471–533.

———. 1988. Juvenile Court Meets the Principle of Offense: Punishment, Treatment, and the Difference It Makes. Boston University Law Review 68:821–915.

———. 1989. The Right to Counsel in Juvenile Court: An Empirical Study of When Lawyers Appear and the Difference They Make. Journal of Criminal Law & Criminology 79:1185–346.

———. 1993a. Criminalizing the American Juvenile Court. In Crime and Justice: A Review of Research, ed. Michael Tonry. Vol. 17. Chicago: University of Chicago Press.

———. 1993b. Justice for Children: The Right to Counsel and the Juvenile Court. Boston: Northeastern University Press.

———. 1995. Violent Youth and Public Policy: A Case Study of Juvenile Justice Law Reform. Minnesota Law Review 79:965–1128.

———. 1997. Abolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy. Journal of Criminal Law & Criminology 88:68–136.

———. 1998. Juvenile and Criminal Justice Systems’ Responses to Youth Violence. Crime and Justice: A Review of Research 24:189–261.

———. 1999. Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.

Furby, Lita and Ruth Beyth-Marom. 1992. Risk Taking in Adolescence: A Decision-Making Perspective. Developmental Review 12:1–44.

Gardner, William and Janna Herman. 1990: Adolescents’ AIDS Risk Taking: A Rational Choice Perspective. In Adolescents and the AIDS Epidemic, ed. William Gardner, Susan G. Millstein; and Bruce Leroy Cox. San Francisco: Jossey-Bass.

Grisso, Thomas. 1980. Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis. California Law Review 68:1134–66.

Lemann, Nicholas. 1992. The Promised Land: The Great Black Migration and How It Changed America. New York: Vintage Books.

Lipsey, Mark W. and David B. Wilson. 1998. Effective Intervention for Serious Juvenile Offenders. In Serious and Violent Juvenile Offenders: Risk Factors and Successful Interventions, ed. Rolf Loeber and David P. Farrington. Thousand Oaks, CA: Sage.

Massey, Douglas and Nancy Denton. 1993. American Apartheid: Segregation and the Making of the Underclass. Cambridge, MA: Harvard University Press.

Parent, Dale G., Valerie Lieter, Stephen Kennedy, Lisa Livens, Daniel Wentworth, and Sarah Wilcox. 1994. Conditions of Confinement: Juvenile Detention and Corrections Facilities. Washington, DC: Department of Justice, Office of Juvenile Justice and Delinquency Prevention.

Podkopacz, Marcy Rasmussen and Barry C. Feld. 1995. Judicial Waiver Policy and Practice: Persistence, Seriousness and Race. Law & Inequality: A Journal of Theory and Practice 14:73–178.

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———. 1996. The End of the Line: An Empirical Study of Judicial Waiver. Journal of Criminal Law & Criminology 86:449–92.

Schwartz, Ira M. 1989. Injustice for Juveniles: Rethinking the Best Interests of the Child. Lexington, MA: Lexington Books.

Scott, Elizabeth S. 1992. Judgment and Reasoning in Adolescent Decision Making. Villanova Law Review 37:1607–69.

Scott, Elizabeth S. and Thomas Grisso. 1997. The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform. Journal of Criminal Law & Criminology 88:137–89.

Sheffer, Julianne P. 1995. Serious and Habitual Juvenile Offender Statutes: Reconciling Punishment and Rehabilitation Within the Juvenile Justice System. Vanderbilt Law Review 48:479–512.

Snyder, Howard and Melissa Sickmund. 1995. Juvenile Offenders and Victims: A National Report. Washington, DC: Department of Justice, Office of Juvenile Justice and Delinquency Prevention, National Center for Juvenile Justice.

Steinberg, Laurence and Elizabeth Cauffman. 1996. Maturity of Judgment in Adolescence: Psychosocial Factors in

Adolescent Decision Making. Law and Human Behavior 20:249–72.

Torbet, Patricia, Richard Gable, Hunter Hurst IV, Imogene Montgomery, Linda Szymanski, and Douglas Thomas. 1996. State Responses to Serious and Violent Juvenile Crime: Research Report. Washington, DC: Department of Justice, Office of Juvenile Justice and Delinquency Prevention, National Center for Juvenile Justice.

von Hirsch, Andrew. 1976. Doing Justice. New York: Hill & Wang.

———. 1993. Censure and Blame. New York: Oxford University Press.

Wilson, William Julius. 1987. The Truly Disadvantaged. Chicago: University of Chicago Press.

———. 1996. When Work Disappears: The World of the New Urban Poor. New York: Knopf.

Zimring, Franklin. 1981. Kids, Groups and Crime: Some Implications of a Weil-Known Secret. Journal of Criminal Law & Criminology 72:867–902.

———. 1982. The Changing Legal World of Adolescence. New York: Free Press.

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D I S C U S S I O N Q U E S T I O N S

1. Feld argues that “two competing cultural and legal conceptions of youth” have facilitated the transformation of the juvenile court from a social welfare agency focused on rehabilitation into a “second-class criminal court.” What are these two competing conceptions?

2. What forces led to the development of the juvenile court?

3. How did the Supreme Court decision, In re Gault, affect the juvenile court? Why did Feld argue that this case “constituted an incomplete procedural revolution”?

4. How did the “tough on crime” attitudes and policies of the 1980s and 1990s affect the juvenile court and the treatment of youthful offenders?

5. According to Feld, what is the “fundamental flaw of the juvenile court”?

6. Why does Feld advocate abolishing juvenile courts? What would he substitute for them?

7. Do you agree or disagree with Feld’s proposal for a “youth discount” at sentencing?

8. How would policy makers respond to Feld’s proposal for an integrated criminal justice system? What types of officials would support it? Who might oppose it?

❖

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R E A D I N G

The United States Supreme Court is the highest court in the land. Although it is primarily an appellate court, it exercises original jurisdiction over certain offenses. Decisions handed down by the Supreme Court have had an important effect on the daily operations of the criminal justice system. Through scores of appeals emanating from the lower courts, the Supreme Court has handed down a wide array of decisions that affect police officers, court officials, corrections officials, and defendants. These decisions dictate such things as how juries are to be selected, trials conducted, and sentences imposed. Clearly, the Supreme Court plays an important role in the criminal process.

The stereotypical image of judges is that they are neutral and detached arbiters of legal matters. In reality, though, courts, including the Supreme Court, can be highly politicized institutions. In choosing nominees for the Court, presidents consider not only the candidate’s experience and qualifications but also his or her party affiliation, political ideology, and policy preferences. Republican presidents tend to appoint Republican judges, who are ideologically conservative, and Democratic presidents tend to appoint Democratic judges, who have more liberal views. The choices that presidents make when filling vacancies on the Supreme Court therefore have the potential to affect the ideological makeup of the Court and thus the decisions handed down by the court. (Presidents, however, are not always satisfied with the judges they appoint. President Eisenhower, for example, appointed two justices—Earl Warren and William Brennan—whom he thought were conservative but who turned out to be extremely liberal. When asked if he had made any mistakes as president, Eisenhower replied, “Yes, two, and they are both sitting on the Supreme Court” [Baum, 1985, p. 41].) Scholars have given much attention to the ideological leanings of the Supreme Court, which often depends not only on the conservative/liberal ratio of judges but also on the ideological stance of the chief justice.

One such examination is Christopher Smith’s study, “The Rehnquist Court and Criminal Justice: An Empirical Assessment.” Smith’s study reveals how, under the leadership of (now deceased) Chief Justice Rehnquist, the Supreme Court handed down many decisions that favored criminal justice officials rather than individuals accused of crimes. Many have called the “Rehnquist Court” a conservative Court because of this tendency to side with law enforcement officials and other criminal justice professionals. Smith’s study also provides a glimpse of the power and influence the Supreme Court can exert over the operation of the criminal justice system. Not unlike Feeley’s article on the lower criminal courts, Smith’s study illustrates how the Supreme Court does operate rather than how it should operate.

SOURCE: Journal of Contemporary Criminal Justice, Vol. 19 No. 2, May 2003 161–181.

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The Rehnquist Court and Criminal Justice

An Empirical Assessment

Christopher E. Smith

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When scholars articulate conclusions about institutions, processes, and social phenomena, they inevitably summarize and generalize. Generalizations, if produced thoughtfully and supported by evidence, can reflect accurate insights. Yet generalizations, especially those concerning human behavior and complex social phenomena, by their very nature diminish or omit inconsistencies, cross-currents, and complexities that would provide a more complete picture of developments. Thus, there are risks that the often-repeated generalizations about the subjects of scholarly study will obscure details that are essential for comprehensive understanding of trends and consequences.

When the U.S. Supreme Court is the subject of study, it is especially important to analyze trends in the context of other developments. The Court plays a central role in shaping law and public policy affecting criminal justice. During William Rehnquist’s tenure as Chief Justice, the Court has gained a reputation as a consistent supporter of expanded discretionary authority for state legislatures, prosecutors, police officers, and corrections officials. In part, these generalizations flow from the Rehnquist Court’s sharp contrast with the rights-expanding performance of the Warren Court era (Cox, 1968). As a result, the actions of the Rehnquist Court tend to be summarized as being conservative and advancing a diminution of constitutional rights for criminal suspects, defendants, and convicted offenders. For example, in the words of John C. Domino in his book Civil Rights and Liberties: Toward the 21st Century (1994),

By rethinking established modes of constitutional adjudication and by returning to constitutional literalism, the Rehnquist Court has tipped the scales in favor of states’ rights, community

interests, law and order, and majority rule, bringing us nearly full circle to the judicial philosophy of the pre-Warren era. (p. 285)

Despite the consistency of certain trends, the Rehnquist Court is not a monolithic entity that inevitably acts in a predictable fashion. The human beings who comprise the Court form shifting and sometimes surprising internal majorities whose decisions expand governmental authority in many instances yet impose limits on police and prosecutors in other circumstances. One way to gain a more nuanced and complete understanding of the Rehnquist Court’s cases affecting criminal justice is to empirically examine the decision making of the Court and its justices. Empirical data about judicial decision making do not adequately describe and provide a basis for analyzing all important aspects of the Supreme Court’s performance and consequences, especially with respect to doctrinal developments and policy impacts. However, empirical data can provide systematically developed, comprehensive “snapshots” of the decisions by the Court and its justices. The use of such data can help to alleviate the limiting effects of generalizations based on perceived trends affecting specific doctrinal issues. This article uses empirical data about the Supreme Court to look beyond the Rehnquist Court’s trends and reputation and thereby identify less recognized underlying characteristics and developments.

y Method For several decades, scholars in political science have analyzed court decisions through quantitative techniques (e.g., Segal, 1986). The use of these techniques requires that cases be classified and

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coded. As a result, several large databases of court decisions have been developed that provide scholars with categories of information about each court decision. The analysis of Supreme Court trends in this article is based on case classifications that emulate those in the Supreme Court Judicial Data Base. The Supreme Court Judicial Data Base provides information about legal issues and each justice’s vote for all U.S. Supreme Court decisions since 1953 (Spaeth, 2001).

Cases were individually coded for the purposes of this article rather than relying on the Supreme Court Judicial Data Base. The coding for the Supreme Court Judicial Data Base is described as follows:

Although the criteria for the identification of issues are hard to articulate, the focus here is on the subject matter of the controversy rather than its legal basis. . . . The objective is to categorize the case from a public policy standpoint. (Spaeth, 2001, p. 70)

In contrast with the public policy emphasis of the coding for the Supreme Court Judicial Data Base, this article focused on the legal basis for the Supreme Court’s decisions. For example, in the Supreme Court Judicial Data Base, Fourth Amendment cases are classified under the categories search and seizure; search and seizure, vehicles; and search and seizure, Crime Control Act. In addition, Fourth Amendment cases may also be found with alternative classifications such as civil rights, juveniles, in which they may be mixed with other kinds of cases. Cases concerning juveniles cover such Fourth Amendment matters as drug testing within schools or school locker searches as well as other legal issues affecting juveniles’ rights. Thus, for the purposes of this article, the author classified individual cases based on the legal issues involved in the cases rather than seek to find, for example, where all of the Fourth Amendment cases might be located in various categories within the Supreme Court Judicial Data Base.

All of the Supreme Court’s decisions from the 1995 term through the 2000 term were examined to determine which ones are related to criminal justice.

This study broadly defines criminal justice-related cases. In addition to cases concerning statutory interpretations of substantive criminal law and constitutional interpretations affecting criminal defendants’ rights, the study includes decisions concerning civil rights litigation that affects officials in the criminal justice system. These cases concerning civil litigation were included because civil rights lawsuits against police and corrections officials significantly influence the development of policies, practices, and training in the criminal justice system (Smith & Hurst, 1997). This study excludes immigration cases, such as those concerning the deportation of individuals with criminal records.

The time period for study was selected to examine the Rehnquist Court during its era of most stable composition. The same nine justices have been on the Court since the appointment of Justice Stephen Breyer in 1994. Thus, this study is able to examine an actual court with consistent composition rather than a changing institutional entity that bears the name “Rehnquist Court” merely because of the tradition of labeling Supreme Court eras according to the identity of the chief justice. The time period for this study begins with the 1995 term rather than with the arrival of Justice Breyer in 1994 to avoid the risk that Breyer’s initial performance might have been distorted by the “freshman effect,” a much-debated hypothesis concerning new justices’ initial inconsistency and lack of confidence in participating in the Court’s group decision-making process during the first term of service (e.g., Heck & Hall, 1981; Melone, 1990; Snyder, 1958).

Each criminal justice–related case was classified according to the legal issue raised in the case. If there was more than one issue in a case, the case was classified according to the issue that received the most attention in the Court’s opinions or the issue that caused the greatest division among the justices. There were no multiple-issue cases in which the issue that caused the greatest division was not also the issue that received the most extensive attention in the opinions. In an effort to maintain

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consistency, the classifications were checked against the case syllabi provided on Cornell University’s Web site for Supreme Court decisions (see http://www.law .cornell.edu) as well as against yearly postterm coding for all Supreme Court civil rights and liberties cases done by a team of three professors in preparation of annual supplements for a Supreme Court textbook (e.g., Hensley, Smith, & Baugh, 1998).

The outcome of each case was classified as “liberal” or “conservative,” as is commonly done in empirical studies of judicial decisions. The definitions of liberal and conservative are modeled on the classifications in the Supreme Court Judicial Data Base in which “liberal decisions in the area of civil liberties are pro-person accused or convicted of a crime, pro-civil liberties or civil rights claimant, pro-indigent, pro– Native American, and anti- government in due process and privacy” (Segal & Spaeth, 1989, p. 104). By contrast, conser va - tive decisions in criminal justice cases favor the government’s interests in prosecuting and punishing offenders over recognition or expansion of rights for individuals. The votes of each justice were similarly classified according to these definitions.

y The Supreme Court’s Criminal Justice Docket

Cases concerning criminal justice comprise a substantial portion of the Supreme Court’s docket. Indeed, if the Supreme Court’s cases were divided among categories defined by the titles of law courses

taught at universities, criminal law and criminal procedure would have few rivals for their claim to a lion’s share of the Court’s attention. The contemporary predominance of criminal justice cases on the Supreme Court’s docket is consistent with the importance of such cases as a central focus of the Court’s attention since the 1960s (O’Brien, 1990). As indicated in Table 1, during the period of the Supreme Court’s 1995 term through its 2000 term, an era in which the Court produced full written opinions after oral arguments in only 74 to 85 cases each year (e.g., Coyle, 2000; Greenhouse, 1996), the Court decided between 22 and 35 criminal justice cases each year. The table includes constitutional law decisions, such as those defining individuals’ rights in the criminal justice system, and statutory interpretation decisions concerning such issues as substantive criminal law and sentencing guidelines.

Table 1 highlights two striking but infrequently acknowledged characteristics of the Supreme Court’s decision making and impact on criminal justice. First, although most scholarly analyses of the Supreme Court’s impact on criminal justice focus on constitutional law decisions affecting individuals’ rights and the scope of officials’ discretionary authority, most of the Supreme Court’s decisions concerning criminal justice do not address constitutional issues. During a 6-year period, the Supreme Court devoted more attention to cases concerning sentencing guidelines, habeas corpus procedures, and federal substantive criminal law than to cases defining the constitutional rights of suspects, defendants, and convicted offenders. Unlike

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Term 1995 1996 1997 1998 1999 2000 Overall Total

Constitutional 10 13 12 12 20 11 78

Statutory and other 12 17 23 10 11 14 87

Annual total 22 30 35 22 31 25 165

Table 1 Annual Number of Constitutional and Nonconstitutional Criminal Justice Cases Decided by the U.S. Supreme Court From the 1995 Term Through the 2000 Term

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Section 1 � The Rehnquist Court and Criminal Justice 71

constitutional decisions about searches and seizures that affect thousands of encounters between citizens and police every day throughout the country, these nonconstitutional cases typically concern relatively narrow issues of statutory interpretation that affect only limited numbers of federal criminal prosecutions. Even the Court’s primary nonconstitutional issue of broad potential applicability, habeas corpus procedures, actually affects only a limited number of cases because of the relatively small number of incarcerated offenders who file such petitions in the federal courts (Hanson & Daley, 1995).

Second, the relatively small number of constitutional decisions affecting criminal justice, typically only a dozen per year in recent terms, highlights the need to avoid exaggerating the highest court’s importance in shaping case outcomes when constitutional rights are at issue. Although the Court has made many important decisions concerning individuals’ rights and its decisions provide guidance for decision making by other courts, the Supreme Court examines and settles only the tiniest fraction of constitutional claims that arise annually in criminal justice cases. State supreme courts, state intermediate appellate courts, and federal courts of appeals throughout the country each determine the outcomes in many more cases affecting individuals’ rights in the criminal justice system than does the U.S. Supreme Court (Maguire & Pastore, 2001). Despite its image as the ultimate institutional guardian of constitutional rights, the contemporary Court decides very few such cases. In reality, the protection of constitutional rights in criminal justice rests most heavily on the knowl - edge, ethics, and professionalism of police officers and others who make discretionary decisions about the investigation and prosecution of crimes. State courts and lower federal courts provide a potential check on officials’ improper decisions, but the U.S. Supreme Court is seldom involved in evaluating the propriety of decisions in the justice system. There is no doubt that Supreme Court justices aspire to select for decision those criminal justice issues that will have broad applicability. However, the small numbers of constitutional issues they choose to examine annually as well as the percentage of the justices’ decisions that endorse and

expand officials’ actions at the expense of individuals’ claims of right (see Table 4) effectively limit the Supreme Court’s practical role and impact as the protector of rights in criminal justice.

Table 2 shows the nature and frequency of criminal justice issues addressed by the Rehnquist Court during six terms. Among constitutional cases, issues arose most frequently concerning the Fourth Amendment. The predominance of search and seizure cases is not surprising in light of the many technical details affecting the legal rules on this subject. There is no single rule or principle that defines rights and limits of official authority under the Fourth Amendment. Instead, the Court typically defines search and seizure guidelines by balan - cing governmental investigatory interests against individuals’ privacy interests in specific situations. A variety of issues arise with great regularity because of the frequency with which police officers conduct stops and searches in diverse contexts and unique factual circumstances.

Among nonconstitutional issues, the significant attention given to habeas corpus procedures reflects the effort by the Rehnquist Court majority to limit opportunities for convicted offenders to mount collateral attacks on their convictions within the federal courts (Yackle, 1994). In addition, the Court has interpreted a recent statute (Anti-Terrorism and Effective Death Penalty Act) that places congressional limitations on habeas corpus.

The Court’s attention devoted to the inter - pretation of federal criminal statutes is a predictable consequence of two ongoing developments affecting the criminal justice system. First, Congress has acted with increasing frequency to “federalize” crimes by enacting new statutes defining offenses and punishments (Gest, 2001). Because there are more federal crimes than in the past, the Supreme Court should expect more numerous requests to clarify the meaning of the statutes that define those crimes. Second, the expansion of federal law enforcement agencies and their activities inevitably produces more investigations, prosecutorial decisions, and new factual circumstances for which the meaning and applicability of criminal laws may be disputed.

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In Table 3, the major categories of criminal justice cases are divided according to Supreme Court term to discern any evidence of patterns or changes of attention to specific issues.

If one hypothesized that the Supreme Court justices harbor specific agendas concerning areas of law and policy they seek to shape with their decisions (Baum, 1989), then patterns of issues accepted for

hearing and decision might reveal preferences and priorities. Although there are specific reasons, as previously discussed, for the Fourth Amendment, habeas corpus, and federal criminal law to comprise important segments of the Court’s docket, there is little indication that annual figures on cases concerning these issues can be attributed to anything other than unpredictable patterns of particular cases

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Constitutional Issues

Fourth Amendment

Due process

Sixth Amendment right to counsel

Capital jury instructions

Fifth Amendment self-incrimination

Fifth Amendment double jeopardy

Ex post facto clause

Sixth Amendment confrontation clause

Equal protection

First Amendment

Sixth Amendment fair trial

Separation of powers

Sixth Amendment trial by jury

Sixth Amendment compulsory process

Eighth Amendment excessive fines

Habeas corpus suspension

Prisoners’ access to courts

Appointments clause

Federalism

Fourteenth Amendment right to practice law

Privacy

78 (47.3%)

20

11

6

6

5

4

4

3

3

3

2

2

1

1

1

1

1

1

1

1

Statutory and Other Issues

Habeas corpus procedures

Federal criminal statutes

Civil rights litigation

Federal sentencing statute and guidelines

Federal rules of criminal procedure

Appellate review standards

Interstate detainers/extradition

Forfeiture procedures

Federal rules of evidence

Federal prison regulations

Lawyer-client privilege

Tribal court jurisdiction

Other federal statute

Table 2 Issues in the U.S. Supreme Court’s Criminal Justice Cases From the 1995 Term Through the 2000 Term

87 (52.2%)

25

21

13

11

5

3

2

2

1

1

1

1

1

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Section 1 � The Rehnquist Court and Criminal Justice 73

brought to the Court each year and the justices’ inclinations to tackle specific cases. Cases concern - ing habeas corpus, federal crimes, and search and seizure have been accepted for hearing each year, sometimes with more cases than in the past but with no clear trajectory. By contrast, the Court’s increased attention to right to counsel and capital jury instructions in recent terms may reflect the emergence of these issues due to increased public attention and political controversies surrounding the death penalty (e.g., Wilgoren, 2002). The highly publicized problems with erroneous convictions and inadequate representation of capital defendants may have drawn the Court’s attention to these issues that did not previously secure a regular place on the docket.

y Empirical Measures of Supreme Court Decision Making in Criminal Justice

In deciding criminal justice cases, the Rehnquist Court has been characterized as “moving to the Right” (Lock,

1999, p. 90). This characterization stems from the generally accepted observation that the Court’s majority is composed of conservatives who have “been active in narrowing or overturning many Warren and Burger Court precedents that were favorable to the rights” of individuals in the criminal justice system (Fliter, 2001, p. 183). None of the contemporary justices had the experience of representing criminal defendants in their prejudicial careers as attorneys (Fortunato, 1999). The only justice whose work as an attorney included advocacy for constitutional rights, Ruth Bader Ginsburg, focused on the applicability of the Equal Protection Clause to gender discrimination cases (Cole, 1984). The other justices’ prejudicial careers gave them legal experience in government, representing corporate interests, or both (e.g., The Supreme Court at Work, 1990). The majority of Warren Court members had personal experiences that gave them an empathic understanding of the risk that suspects and defendants could experience maltreatment at the hands of abusive law enforcement officials (Smith, 1990). By contrast, most of the Rehnquist Court justices’ contacts with criminal justice came through experiences as lawyers on the staffs of county prosecutors, state attorney generals, or the U.S. Justice Department (i.e., Sandra Day O’Connor, William

Term

Issue 1995 1996 1997 1998 1999 2000 Total

Habeas corpus procedures 3a 4 7 2 4 5 25

Federal criminal statute 1 3 6 5 4 2 21

Fourth Amendment 1 4 2 5 3 5 20

Civil rights litigation 0 4 5 2 0 2 13

Federal sentencing law 4 2 3 0 2 0 11

Due process 3 3 0 2 2 1 11

Sixth Amendment right to counsel 0 0 0 0 4 2 6

Capital jury instructions 0 0 2 1 1 2 6

Table 3 Number of Case Decisions for Major Issue Areas From the 1995 Term Through the 2000 Term

a. The Supreme Court also decided a fourth habeas corpus–related case in the 1995 term. Unlike the nonconstitutional procedural issues in other habeas corpus cases, this case concerned the application of the Habeas Corpus Suspension Clause to and the constitutionality of the habeas corpus provisions of the Anti-Terrorism and Effective Death Penalty Act (Felker v. Turpin, 1996).

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Rehnquist, Antonin Scalia, Clarence Thomas, David Souter). Moreover, most of the Rehnquist Court justices were selected by Republican presidents who emphasized “law and order” crime control policies and sought to identify judicial appointees who would reflect those views. Because the Supreme Court’s decisions are driven by the values and policy preferences of its members (Baum, 1989), one would expect the contemporary Supreme Court to generally favor the maintenance of justice officials’ discretionary authority over the expansion of constitutional rights for criminal suspects, defendants, and convicted offenders.

Table 4 portrays the Supreme Court’s pattern of decision making from the 1995 term through the 2000 term. In the table, the labels liberal and conservative are used as a convenient shorthand to describe the outcomes supported by individual justices and the Court majority. Such labels are commonly used in empirical studies of the Supreme Court, and their use enhances scholars’ ability to make systematic comparisons of different Court terms and eras.

Despite the Rehnquist Court’s reputation for conservatism in criminal justice cases, 37% of its decisions supported individuals’ claims. Moreover, nearly half of these liberal decisions (28 of 61) were unanimous. In addition, the justices demonstrated a complete consensus on conservative outcomes in an additional 35 cases. Despite the strong differences of opinion among justices that are evident in many cases, the justices were in complete agreement in 38% of criminal justice cases (63 of 165). The data on unanimous liberal decisions indicate that the Rehnquist Court justices, including the conserva tives,

regularly encounter cases in which they share a consensus about the need to protect constitutional rights and to fulfill the legislative intent underlying federal statutes. The justices’ consensus in such cases leads to the imposition of limitations on criminal justices officials’ asserted authority. Previous studies highlight the risk that a Supreme Court’s ideological reputation will obscure the reality of its production of ideologically mixed outcomes during any given era (Smith & Hensley, 1993). As indicated by Table 4, the conservative Rehnquist Court’s regular support for liberal outcomes in criminal justice cases is consistent with these studies.

The dominance of the conservative majority is evident in the split decisions produced by the Court. Whenever there is disagreement among the justices, those who prefer conservative outcomes prevail in nearly 70% of nonunanimous cases. Attorneys who bring criminal defendants’ cases to the Supreme Court undoubtedly recognize that the justices support the government more frequently than they support individuals’ claims. However, the Court endorses individuals’ claims with sufficient regularity that attorneys ought to believe that it is worth “taking a shot” for many issues that have not been firmly and decisively defined in prior precedents.

In deciding criminal justice cases, individual justices differ from each other in their tendency to support individuals’ claims. Table 5 shows each justice’s support for liberal and conservative outcomes in criminal justice cases during six terms. For comparative purposes, the table also displays the percentages for justices serving on the Warren Court

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Vote Liberal Conservative Total

9–0 28 35 63

8–1 4 13 17

7–2 9 15 24

6–3 7 13 20

5–4 13 28 41

Total 61 (37%) 104 (63%) 165

Table 4 Case Distribution by Vote and Liberal-Conservative Outcomes in U.S. Supreme Court Criminal Justice Decisions From the 1995 Term Through the 2000 Term

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Section 1 � The Rehnquist Court and Criminal Justice 75

in 1968 (Smith, 1997a). Data for the Warren Court were drawn from the Supreme Court Judicial Data Base, whereas the Rehnquist Court data were classified and calculated by the author.

The percentages displayed in the table are generally consistent with conventional wisdom about the Rehnquist Court justices’ values and reputations, although some observers might have guessed that the ordering of the justices would be slightly different. The listing of percentages for the individual Rehnquist Court justices shows how much the Supreme Court has changed since the 1960s when they are compared with the percentages for Warren Court justices. As indicated by Table 5, six Warren Court justices (Black, Warren, Brennan, Marshall, Fortas, and Douglas) were as or more liberal than the most liberal Rehnquist Court justice (Stevens) with respect to their patterns of decisions for criminal justice cases. Conversely, five Rehnquist Court justices (Rehnquist, Thomas, Scalia, O’Connor, and Kennedy) are as or more conservative than the most conservative Warren Court justice (White).

Consistent with their reputations, Chief Justice Rehnquist and Justices Thomas and Scalia are the justices least likely to support individuals’ claims. Among the Court’s four most liberal justices, there is a notable 20% gap between the most conservative liberal (Breyer) and the most liberal conservative (Kennedy). This gap would seem to justify descriptions of the Court as split between two distinctive wings for criminal justice cases. It is also apparent that Justice Stevens is notably more consistent than are his colleagues in supporting liberal outcomes because there is a 10% gap between him and the next most liberal justice (Ginsburg), who is tightly bunched (i.e., within 5%) with the other two liberals (Breyer and Souter).

It is not surprising that the dividing line between the Court’s two wings defines the outcomes for most of the Court’s most closely contested cases. As indicated in Table 6, the losing liberal minority coalition in 5-to-4 conservative decisions was composed of the Court’s four most liberal justices in 23 of 28 decisions.

Rehnquist Court Warren Court

Justice Liberal Conservative Justice Liberal Conservative

Rehnquist 26.1% (43) 73.9% (122) White 33% 67%

Thomas 27.9% (46) 72.1% (119) Harlan 38% 62%

Scalia 30.9% (51) 69.1% (114) Stewart 45% 55%

O’Connor 31.5% (52) 68.5% (113) Black 70% 30%

Kennedy 34.5% (57) 65.5% (108) Warren 74% 26%

Breyera 54.9% (90) 45.1% (74) Brennan 76% 24%

Souter 57.6% (95) 42.4% (70) Marshall 80% 20%

Ginsburg 60% (99) 40% (66) Fortas 83% 17%

Stevens 69.7% (115) 30.3% (50) Douglas 89% 11%

Table 5 Individual Rehnquist Court Justices’ Liberal-Conservative Voting Percentages in U.S. Supreme Court Criminal Justice Decisions From the1995 Term Through the 2000 Term Compared With 1968 Warren Court Justices’ Lifetime Percentages for Criminal Justice Cases

a. Justice Breyer Participated in only 24 of the 25 criminal justice cases during the 2000–2001 term. Thus, his total number of decisions is one fewer than that of his colleagues. He recused himself from participating in United States v.Oakland Cannabis Buyers’ Cooperative (2001), presumably because his brother is a federal judge who made a decision in the case in the lower courts.

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The most surprising aspect of the Rehnquist Court percentages in Table 5 may be the evidence that Justices O’Connor and Kennedy are nearly as conservative as Justice Scalia in criminal justice cases. Although O’Connor and Kennedy are regarded as two dependable members of the dominant five- member conservative majority, they are often described as the Court’s “centrists” who periodically abandon their conservative colleagues to enable the four most liberal justices to gain a five-member majority in specific cases (Greenhouse, 1992). Despite this reputation for relative moderation in criminal justice cases, they were no more likely than Justices Scalia and Thomas to join five-member majorities to create liberal outcomes in criminal justice cases during the time period examined. As demonstrated in Table 7, which depicts the majority coalitions in the Court’s thirteen 5-to-4 liberal decisions, the tandem of Scalia and Thomas abandoned their conservative colleagues to help the liberal justices form a razor- thin majority just as frequently (i.e., 4 times) as O’Connor and Kennedy acted individually to achieve the same results. In fact, Clarence Thomas, one of the Court’s most conservative justices, was actually the individual justice who helped the liberals form majorities in the largest number of closely divided decisions (5) because he acted on his own in one case in addition to the four cases in which he acted in concert with Scalia. These examples provide evidence that specific legal issues can draw justices away from their usual ideological allies because these issues strike a chord with the justices’ individualistic,

or perhaps idiosyncratic, analysis or philosophy concerning specific principles of statutory and constitutional interpretation.

Table 8 shows an analysis of interagreement between individual justices on the Supreme Court. Such interagreement tables are used to detect the existence of voting blocs on the high court (e.g., Johnson & Smith, 1992). In empirical studies of the Supreme Court, voting blocs are determined according to the Sprague criterion. The Sprague criterion is calculated by subtracting the average agreement score for the entire Court from 100. The resulting number is divided by two and added to the Court average to establish the threshold level for defining a bloc. A bloc exists when the average of individual agreement scores for a set of justices exceeds the threshold established by the Sprague criterion calculation (Sprague, 1968). During the six terms examined in this study, there were two strong voting blocs in criminal justice cases, one conservative and one liberal. Chief Justice Rehnquist and Justices Scalia and Thomas formed the conservative bloc, in part because Scalia and Thomas agreed with each other at the highest rate of any pair of justices (92.1%). Justices Breyer, Ginsburg, and Souter formed a connected liberal threesome. If these blocs are characterized in light of the percentages evident for Warren Court justices in Table 5, one could say that the Rehnquist- Thomas-Scalia bloc is strongly conservative because it is composed of the three most conservative justices of the two eras examined. By contrast, the

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Dissenting Coalition Frequency

Stevens, Souter, Breyer, and Ginsburg 23

Stevens, Souter, Breyer, and O’Connor 1

Stevens, Souter, Breyer, and Kennedy 1

Stevens, Breyer, Ginsburg, and O’Connor 1

Souter, Ginsburg, Rehnquist, and Scalia 1

Stevens, Breyer, Scalia, and Thomas 1

Table 6 Dissenting Coalitions and Frequency of Their Existence in the Rehnquist Court’s 5-to-4 Conservative Decisions From the 1995 Term Through the 2000 Term

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Section 1 � The Rehnquist Court and Criminal Justice 77

Breyer-Ginsburg-Souter voting bloc is only moderately liberal when compared with both Justice Stevens and the six Warren Court justices who supported individuals’ claims in criminal justice cases with much greater frequency.

y Explaining the Liberalism of the Rehnquist Court

Empirical data on the Supreme Court’s decision making during six terms confirm the validity of the

Rehnquist Court majority’s conservative reputation for generally deciding in favor of the government in criminal justice cases. Five justices each favor the government’s position in two-thirds or more of all criminal justice cases. Simultaneously, however, the data show that simple generalizations about the Court’s conservatism may obscure recognition of the Rehnquist Court’s regular support for individuals’ claims, albeit in a minority of criminal justice cases. Moreover, because five justices are consistently conservative, a liberal outcome can only be produced when one or more of the conservative justices join

Case Justices in Majority Coalition

1995 term There were no 5-to-4 liberal decisions

1996 term

Richardson v. McKnight (1997) O’Connor, Breyer, Souter, Stevens, Ginsburg

Lindh v. Murphy (1997) O’Connor, Breyer, Souter, Stevens, Ginsburg

Old Chief v. United States (1997) Kennedy, Breyer, Souter, Stevens, Ginsburg

1997 term

Hohn v. United States (1998) Kennedy, Breyer, Souter, Stevens, Ginsburg

Crawford-El v. Britton (1998) Kennedy, Breyer, Souter, Stevens, Ginsburg

Gray v. Maryland (1998) O’Connor, Breyer, Souter, Stevens, Ginsburg

United States v. Bajakajian (1998) Thomas, Breyer, Souter. Stevens, Ginsburg

1998 term

Mitchell v. United States (1999) Kennedy, Breyer, Souter, Stevens, Ginsburg

Jones v. United States (1999) Thomas, Scalia, Souter, Stevens, Ginsburg

1999 term

Apprendi v. New Jersey (2000) Thomas, Scalia, Souter, Stevens, Ginsburg

Carmell v. Texas (2000) Thomas, Scalia. Souter, Stevens, Breyer

Stenberg v. Carhart (2000) O’Connor, Breyer, Souter, Stevens, Ginsburg

2000 term

Kyllo v. Untied States (2001) Thomas, Scalia, Souter, Breyer. Ginsburg

Table 7 Majority Coalitions in the Supreme Court’s 5-to-4 Liberal Decisions From the 1995 Term Through the 2000 Term With the Conservative Coalition Members Highlighted

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liberal colleagues in support of individuals’ arguments about rights and legal protections. The conservative justices’ willingness to support individuals’ claims in selected cases is most evident in the 28 unanimous decisions favoring liberal outcomes, but it is also apparent in the other liberal decisions constituting nearly 40% of the Court’s total criminal justice cases.

Whenever the Rehnquist Court decides a criminal justice case in favor of the government’s position, few commentators are surprised because the dominance of the Court’s five consistent conservatives casts such results as virtually expected outcomes. The Rehnquist Court’s conservatism is both anticipated and explainable, largely because of the political history underlying the selection of justices by Republican presidents as well as the justices’ well-established track records of decision making in criminal justice cases. The members of the Rehnquist Court’s conservative majority have

served on the high court for periods ranging from 11 years (Thomas) to 30 years (Rehnquist), and they have all been consistently conservative in criminal justice cases throughout their Supreme Court careers (Hensley, Smith, & Baugh, 1997). Although the nature, basis, and consequences of the Rehnquist Court’s conservative decisions deserve careful analysis, their regular production does not require special analysis to be predictable, explained, and understood. By contrast, the Rehnquist Court’s liberal decisions present a puzzling question. When and why does a Supreme Court dominated by a solid majority of consistent conservatives decide criminal justice cases in favor of suspects, defendants, and convicted offenders?

Although the foregoing question is intriguing on its face, the analysis of the question requires a major caveat. The Court’s decisions in favor of individuals’ claims do not necessarily establish new constitutional

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Thomas Scalia Rehnquist O’Connor Kennedy Souter Breyer Ginsburg Stevens

Thomas 92.1 86.1 80.6 80.0 64.2 63.4 58.2 50.9

Scalia 85.5 78.2 75.2 63.6 59.1 58.2 49.1

Rehnquist 87.3 84.2 64.8 64.6 62.4 52.7

O’Connor 84.8 70.9 72.6 68.5 57.6

Kennedy 70.9 72.0 67.3 62.4

Souter 85.4 89.1 80.0

Breyer 86.0 81.1

Ginsburg 81.8

Court mean 72.0

Sprague criterion 86.0

Voting blocs

Thomas, Scalia, and Rehnquist 87.9

Souter, Breyer, and Ginsburg 86.8

Table 8 Interagreement Percentages for Paired Justices in U.S. Supreme Court Criminal Justice Decisions From the 1995 Term Through the 2000 Term

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Section 1 � The Rehnquist Court and Criminal Justice 79

protections in the mold of the Warren Court’s innovative jurisprudence. The Rehnquist Court’s liberal outcomes often merely reaffirm an established precedent or provide a procedural protection for a convicted offender whose ultimate fate, a significant period of incarceration, will not change as a result of the Court’s decision. Despite the possibility that the Rehnquist Court’s liberal decisions may have a relatively modest impact on the lives of people drawn into the criminal justice system, the fact that a Supreme Court dominated by conservatives regularly makes such decisions is a matter worthy of examination.

Because the Supreme Court’s decisions are produced by shifting majority coalitions of varying sizes, no single causal factor can explain all of the Court’s liberal decisions. Obviously, unanimous liberal decisions are generated by different contexts and decision-making processes than those that lead to 5-to-4 decisions in which a single conservative justice abandons his or her usual allies to produce an outcome favoring individuals’ claims. Moreover, it is difficult for analysts to claim to have discovered definitive, verifiable explanations for the decision- making behavior of individual Supreme Court justices or the Court as a whole (Clayton, 1999). Scholars focus on a variety of factors that influence judicial decision making, including justices’ individual values and judicial philosophies as well as strategic behavior and institutional processes (Baum, 1997). The strength and importance of these factors may vary depending on the historical moment in which a particular legal issue arises. As a result, no single explanation can account for all of the Court’s liberal criminal justice decisions. Thus, distinct causal factors may be associated with particular categories of cases or specific legal issues.

Of the Court’s 61 liberal decisions during the terms analyzed in the foregoing data, 34 concerned nonconstitutional issues, primarily statutory inter - pretation. In these cases, it may be easier for justices to reach consensus if they have a shared understanding that their job is to ensure that statutes’ underlying legislative intent is fulfilled. For example, the Court’s unanimous decision in Pennsylvania Department of Corrections v. Yeskey (1998) declared that prisoners are entitled to file actions against state prisons under the Americans

With Disabilities Act. In light of the fact that the Rehnquist Court has consistently declined to expand rights for convicted offenders (Fliter, 2001) and has actually diminished previously established rights (e.g., O’Lone v. Estate of Shabazz, 1987; Wilson v. Seiter, 1991), it would be very surprising if the Yeskey decision embodied a consensus about the need to give priso - ners additional protections. Instead, the decision is best understood by recognizing that liberal and conservative justices will follow legislative intent without regard to their ideological preferences about the outcome (Scalia, 1997), albeit not necessarily in every single statutory interpretation case.

Another source of liberal outcomes can be individual conservative justices’ reactions to specific legal issues that cause them to abandon their usual allies. This can occur when the Court is presented with new issues about which the conservative majority lacks informative precedents or prior opportunities to examine and discuss the implications. For example, Justice Thomas’s decision to join his liberal colleagues and provide the decisive fifth vote for identifying a violation of the Eighth Amendment’s Excessive Fines Clause (United States v. Bajakajian, 1998) was apparently based on his individualistic reaction to this issue on first impression. Such outcomes can also be produced when cases raise new aspects of previously decided issues for which individual conservative justices have already indicated reluctance to join their usual allies. This appears to be the case in Justice O’Connor’s decision to join the liberals in striking down a Nebraska statute that sought to criminalize so- called partial birth abortions (Stenberg v. Carhart, 2000). Justice O’Connor’s vote in the case appears to be consistent with her position in previous decisions that upheld the constitutional right to make choices about abortion (e.g., Planned Parenthood v. Casey, 1992).

Liberal decisions can also be produced when conservative justices feel compelled to define limits on justice system officials’ authority when those officials take actions that test previously defined boundaries. Because of the Rehnquist Court’s reputation for conservatism and its consistent record of generally endorsing expanded governmental powers in criminal justice, police officers, prosecutors, corrections

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officials, and lower court judges may feel encouraged to push and test the limitations created by prior precedents. Their observations and experiences may indicate to them that the Rehnquist Court is likely to eliminate, diminish, or create exceptions to rights- enforcing rules established in prior Supreme Court decisions (e.g., Payne v. Tennessee, 1991; Wilson v. Seiter, 1991). In reality, as indicated by the Court’s recent record of favoring individuals in nearly 40% of criminal justice decisions, including 28 unanimous liberal decisions in recent terms, all of the justices believe individuals are entitled to some measure of constitutional and statutory protection in the criminal justice system. Because the dominant conser - vative majority may be perceived as supporting the diminution of rights, the Court can expect to find itself periodically called on to reinforce the message that there are, in fact, limits to officials’ authority. For example, in Florida v. J.L. (2000), a unanimous Court reiterated the requirement that police officers use reliable information to form the necessary reasonable suspicion for a “stop and frisk” under the doctrine of Terry v. Ohio (1968). Similarly, in Bond v. United States (2000), a seven-member majority, includ - ing consistent conservatives Rehnquist, Thomas, O’Connor, and Kennedy, declared that a border patrol officer violated reasonable expectations of privacy under the Fourth Amendment by randomly squeezing and manipulating soft-sided luggage on an interstate bus. In Knowles v. Iowa (1998), a unanimous Court declared that police officers cannot automatically search automobiles in conjunction with the issuance of a traffic citation, even if such searches are authorized by state statute. These decisions serve to protect rights by reaffirming the existence of limits on officials’ authority. As a result, they serve as barriers against encroachment through experimental exercises of police investigative powers.

Analysts have raised questions about why the conservative-dominated Rehnquist Court has not reversed the major iconic precedents of the Warren Court era (Alexander, 1990). For example, the Rehnquist Court has declined to overturn Mapp v. Ohio (1961) and Miranda v. Arizona (1966), despite opportunities to do so. It may be the case that decisions in the Burger and Rehnquist Court eras that weakened or created

exceptions to such precedents have made the liberal principles’ impacts largely symbolic and thereby dissipated clashes between Warren Court doctrines and the values of Rehnquist Court conservatives (Smith, 1997b). The conservative justices may also recognize that police officers’ strategic adaptations to the Warren Court’s decisions have permitted law enforcement officials to secure confessions and undertake searches with sufficient freedom to fulfill crime control objectives, thus obviating any perceived need to eliminate famous precedents (Leo, 1996). The foregoing reasons may very well have motivated several conservative justices to join their liberal colleagues in reiterating the Court’s commitment to the constitutional requirement of Miranda warnings prior to custodial interrogations (Dickerson v. United States, 2000). They certainly provide an additional plausible basis for the production of liberal outcomes by a conservative-dominated Court.

y Conclusion

An empirical examination of the Rehnquist Court’s criminal justice decisions during a 6-year period confirms the high court’s reputation for generally supporting the government’s position in opposi - tion to constitutional rights claims by individual suspects, defendants, and convicted offenders. However, systematic analysis also reveals that the Court regularly supports individuals’ claims and that a large segment of the Court’s criminal justice docket is composed of nonconstitutional cases, especially statutory interpretation.

The voting patterns of individual justices indicate the existence of two distinct wings within the Rehnquist Court. One wing contains five justices who are as or more conservative than any justice on the 1968 Warren Court. By contrast, the Rehnquist Court’s most liberal justice (Stevens) supports liberal outcomes in criminal justice cases less frequently than did six justices on the 1968 Warren Court. These data provide evidence of the nature and extent of change in the Court’s composition since the 1960s era in which the justices were especially active in expanding constitutional rights and limiting the scope of justice system officials’ authority.

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Section 1 � The Rehnquist Court and Criminal Justice 81

Within the Rehnquist Court, two 3-member groups of justices vote together with such significant frequency that they qualify for classification as consistent voting blocs. One bloc contains the three most conservative justices (Rehnquist, Thomas, and Scalia), and the other contains the moderately liberal justices (Breyer, Ginsburg, and Souter). The existence of a conservative voting bloc on a Court with two additional individual justices who favor the government’s position in two thirds or more of criminal justice cases helps to explain the source of the Court’s reputation and record for rejecting most claims from individuals.

Close examination of the Court’s 5-to-4 liberal decisions indicates that they are not consistently driven solely by occasional defections by the two conservative justices, Kennedy and O’Connor, who have reputations as moderate “swing” voters. In fact, the voting records of these justices in criminal justice cases are nearly as conservative as that of noted conservative spokesperson Justice Scalia. Moreover, the strongly conservative Justice Thomas more frequently defected from the conservative majority to produce liberal outcomes in close cases. Thus, individual justices’ reactions to specific issues seem to play an important role in determining coalition shifts that produce decisions supporting individuals’ claims. These individualistic reactions are not, however, the sole source of liberal outcomes because the Court produced more than two dozen liberal decisions that garnered complete support from all of the justices. As a result, examinations of the reasons for the production of liberal decisions by a conservative-dominated Court must also consider other potential causal factors, including consensual norms about statutory interpretation, the need to rein in criminal justice officials by reaffirming limits on authority, and the reiteration of symbolic principles.

y References

Apprendi v. New Jersey, 530 U.S. 255 (2000). Alexander, R. (1990). The Mapp, Escobedo, and Miranda

decisions: Do they serve a liberal or conservative agenda? Criminal Justice Policy Review, 4, 39–52.

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82 COURTS

D I S C U S S I O N Q U E S T I O N S

1. Smith contends that the Supreme Court plays an important role in shaping criminal justice policy. Discuss the role played by the Court in this arena.

2. Smith classified each Supreme Court decision as “liberal” or “conservative.” Explain what these labels mean.

3. Discuss the types of criminal justice cases that were decided by the Court from 1995 through 2000 (see Tables 1–3).

4. Do the data support the claim that the Rehnquist Court, as a whole, was a conservative court (in terms of decisions regarding criminal justice issues)?

5. How do the nine Rehnquist Court judges compare with the judges on the Warren Court?

6. How does Smith answer the following question: “When and why does a Supreme Court dominated by a solid majority of consistent conservatives decide criminal justice cases in favor of suspects, defendants, and convicted offenders?”

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