contradictions of juvenile crime & punishment

Electronic copy available at: http://ssrn.com/abstract=1681065

Columbia Law School

Public Law & Legal Theory Working Paper Group

Paper Number 10-248

The Contradictions of Juvenile Crime & Punishment

Jeffrey Fagan Columbia Law School

Published by American Academy of Arts & Sciences

Summer 2010


Juvenile incarceration in the UnitedStates is, at !rst glance, distinctly dif-ferent from its adult counterpart. Whilesome juvenile facilities retain the iconicaesthetic of adult incarceration1–orangejumpsuits, large cellblocks, uniformedguards, barbed wire, and similar heavy-security measures–others have trappingsand atmospherics more reminiscent ofboarding schools, therapeutic commu-nities, or small college campuses. Thesecompact, benign settings avoid the phys-ical stigmata of institutional life and ac-cord some autonomy of movement andintimacy in relations with staff. They alsogive primacy to developmentally appro-priate and therapeutic interventions.

However, like its adult counterpart,juvenile corrections, whether located ina human warehouse or a therapeutic com-munity, is designed mainly to control itsresidents and restrict their personal free-doms. Movement and association are in-tensively regulated; outside contact withfamily, friends, and intimate partners isattenuated and used as an incentive forgood behavior; access to media and cul-ture is restricted; privacy is nonexistent;and choice of clothing, language, andother modes of personal expression is

off-limits. Whatever developmental im-portance these forms of self-expressionand self-determination may have for ad-olescents, it is sacri!ced to the primarygoals of security, control, discipline, andpunishment. Most important, at eitherend of the continuum of institutionalclimate, the options of solitary con!ne-ment, physical restraint, or other forms ofextreme deprivation exist to control thede!ant and unruly or to punish wrong-doing. Accordingly, the naming conven-tions for these juvenile facilities are de-ceptive: these are not “training schools”or “centers” or any other kind of schoolor academy, nor are they “homes.” Theseare correctional facilities whose primarypurpose is to punish.

One would expect such institutions tobe reserved for those who are most de-serving of punishment or those who posea nontrivial risk to public safety. But un-der the enduring doctrine of parens patri-ae,2 we incarcerate children for a mixedbag of rationales, ones that do not alwayscomport with the punitive dimensionsof juvenile incarceration. Parens patriaeobligates the court to act beyond theneed simply to protect children from theharms of noxious social circumstancesor to avail them of developmental andmaterial supports that their families havefailed to provide. The doctrine allows–

Jeffrey Fagan

The contradictions of juvenile crime & punishment

© 2010 by the American Academy of Arts& Sciences

Dædalus Summer 2010 43


even mandates–juvenile courts to pro-tect children from themselves: from theirassociations with antisocial peers, frompoor decision-making with respect tocrime, and from harms to their physicaland mental health to which they exposethemselves.3 As a result, we incarceratechildren because their homes are too dan-gerous or criminogenic; because they areboth delinquent and mentally ill or ad-dicted to intoxicants and there are noother appropriate placements; becausethey need therapies that are unavailableelsewhere, even though they pose no se-curity risks; because they are homeless;because they are sexually active at youngages; or because we think they may com-mit some crime in the near future.4

The resulting landscape of juvenileincarceration has been, not surprisingly,complex and shifting since the 1970s, thedecade when adult incarceration trendsbegan their robust increase. Since thattime, juvenile incarceration, and juvenilejustice itself, has been situated in a spacebounded by the transcendent nineteenth-century child-saving movement, the pro-cedural rights movement of the 1960s,and the raw emotional politics of violentcrime and punishment in the past threedecades. Accordingly, we see contradic-tions everywhere in this terrain. Growthin the incarcerated population since the1970s has been restrained, even in theface of a youth violence epidemic,5 andeven as rhetoric has grown harsher andstatutes have been revised to express thelanguage of retribution and incapacita-tion.6 States, for the most part, have ac-knowledged the advantages of small facil-ities to advance the core rehabilitativeand therapeutic projects that informedthe creation of separate institutions forjuveniles nearly two centuries ago, evenif they have not necessarily acted on thoseideas and instincts.7 At the same time, theconditions in juvenile corrections often

remain harsh, a sign of both cynicismabout rehabilitation and institutionalself-interest, as well as neglect.8 Stateshave quickened the pace of expulsions ofjuvenile offenders to the criminal courtsand prisons as a way to “get tough,”9

even as they refuse to lower the age ofmajority and fundamentally alter eligi-bility for the protections of juvenile in-stitutions. Racial disparities remain du-rable and defy explicit legislative andpolicy efforts to reduce them.

These contradictions and puzzlesinform this essay on juvenile incarcera-tion. The patterns of growth in juvenilecorrections suggest ambivalence aboutthe reform and rehabilitation of juvenileoffenders, notions that have been bat-tered by three successive waves of highcrime over the past thirty years. On theone hand, courts and legislatures want tobe tough; on the other hand, there arestrong preservationist instincts at playthat have muted the growth in incarcera-tion of minors. “Getting tough” on juve-nile offenders has thus been assigned tothe criminal courts and adult correctionalinstitutions. But there are signs of ambiv-alence there, with relatively short sen-tences and a responsiveness to crime ratesin new admissions (flow) and total pop-ulation (stock) that is the opposite ofwhat we see for adults. States have dem-onstrated their ambivalence by avoidingchange to the age of majority, the last re-sort in increasing punitiveness for juve-niles. Such a step would be a poison pillfor the doctrine of parens patriae in whichjuvenile corrections is steeped. Racial dis-parity pervades juvenile incarceration,yet Congress attempted remedial stepsnever contemplated for adults, by engag-ing states in a collaborative project to re-duce racial inequalities in juvenile deten-tion and corrections. What this all addsup to is an institutional landscape thatat once fears child criminals and wants

44 Dædalus Summer 2010

JeffreyFagan on massincarcer-ation

to punish them harshly, but at the sametime adheres to the transcendent philos-ophy of child-saving.

Beginning in the 1970s, the traditionaldiscretion of juvenile court judges toplace youths in correctional con!nementwas contested, as was the discretion ofcorrections of!cials to determine howlong youths would remain in placement.On balance, discretion lost. The introduc-tion of mandatory minimum sentencesfor juveniles in New York and elsewherein the 1970s was followed in subsequentdecades by new laws mandating waiverto adult court and mandatory placementin a secure facility.10 In this hardeningpolitical atmosphere, fueled by risingjuvenile arrest rates and a punitive drifttoward more formal processing and lessdiversion, one might have predicted rap-id and persistent growth in the rate of ju-venile imprisonment starting in the 1970s.By the 1990s, when a moral panic over anew species of juvenile offenders knownas “superpredators”11 and the spread ofviolent youth gangs further animated leg-islatures to pass tougher sentencing lawsfor juveniles,12 the conditions seemedripe for the juvenile court to follow a tra-jectory of incarceration growth similarto the rise in adult rates.

But it didn’t happen, at least not in ju-venile corrections. Growth in juvenileincarceration in both public and privatefacilities was only a fraction of the growthin adult incarceration. Juvenile incarcer-ation–both in short-term detention andlonger-term correctional placements–rose from 73,023 youths in public institu-tions and private residential facilities in1977 to 95,818 in 1992, the year precedingthe modern peak in juvenile arrests forfelony crimes.13 Juvenile incarcerationpeaked in 2000 at 108,802, a rate of 356per 100,000 youths ages ten to seventeen.The placement rate declined by more

than 20 percent by 2008, to approximate-ly 81,000 children living in either state-operated facilities or privately operatedgroup homes, or 263 youths per 100,000persons ages ten to seventeen.14 This juvenile placement rate today pales incomparison to the adult incarcerationrate of 762.15

Figure 1 shows that placements in pub-lic facilities accounted for most of therise and fall in juvenile incarceration, andthat these were somewhat responsive tothe rise and subsequent fall in juvenilearrests. Between 1997 and 2008, juvenilearrests declined by 33 percent, while theoverall correctional placement of youthsdeclined by 26 percent.16 Placement inprivate facilities rose more slowly andwas fairly stable over time.

About 70 percent were committed fol-lowing an adjudication of delinquency,and 28 percent were detained prior to theresolution of their case.17 They were in-carcerated on a variety of offenses, withthe greatest number placed for personoffenses (34 percent) followed by prop-erty offenses (25 percent). Drug offensesaccounted for 9 percent of the incarcer-ated population, but more were placedfor “public order” offenses such as alco-hol or disorderly conduct (11 percent)than were placed for drugs. As with theiradult counterparts, many (16 percent)were placed for technical violations ofprobation or juvenile parole. One intwenty was placed for any of several“status offenses”: social behaviors thatdo not violate any criminal code but thatcapture the court’s attention due to therisk of danger to the child’s well-being.18

The area that grew most, however, wasthe number of juveniles below age eigh-teen in state prisons. The pattern in Fig-ure 2 shows a rise in the number of per-sons below age eighteen incarcerated instate prisons from 1985 to 2004, as wellas new admissions for that same group.


The contra-dictions ofjuvenilecrime &punishment

The patterns reflect broader trends in juvenile crime and arrest, especially thespike in juvenile violence from 1987 to1996. The census population of minors inprison peaked at 5,400 in 1996 and de-clined by nearly half, to 2,477, in 2004.19

The population remained stable through2007, when 2,283 youths were in stateprisons or privately operated correctionalfacilities programmed for adults.20

Two trends in Figure 2 are notable andsuggest conflicting instincts.

One is the rapid growth in the num-ber of youths sentenced as adults. Thistrend is responsive to crime trends andalso reflects a growing punitiveness to-ward youth crime that was structured into sentencing statutes. (The “get tough”trend for juveniles is discussed later inthis essay.) But the sentences seem to beattenuated, suggesting that the legisla-tures were tempered in setting tariffs forminors. Figure 2 shows that the numberof new admissions of minors to adult

prisons tracks the trend for the one-daycensus. There is no buildup of “stock”for this population, unlike the steadygrowth for adults.

The similar trend lines for the popula-tion census and the new admissions sug-gest that the sentences for this populationwere shorter and releases were quicker,reflecting a de facto youth discount thatmany states structure into sentencingstatutes under “youthful offender” or“juvenile offender” provisions.21 The re-sponsiveness in the decline of juvenilesin adult prisons beginning in 2000 showsa sensitivity to declining crime rates thatis not evident for the adult population.

Nevertheless, even short-term expo-sure for youths to adult prisons has risksfor youths and for public safety. To theextent that legislators ignored these risks,the wholesale transfer of minors to thecriminal courts was a reckless experiment.A robust body of research shows that re-cidivism rates are in fact higher for youths


JeffreyFaganon massincarcer-ation

Source: Melissa Sickmund et al., Easy Access to the Census of Juveniles in Residential Placement (National Centerfor Juvenile Justice, 2008), http://ojjdp.ncjrs.gov/ojstatbb/ezacjrp; Steven D. Levitt, “Juvenile Crime andPunishment,” Journal of Political Economy 106 (1998): 1156–1185.

Figure 1Juvenile Placements in Public and Private Facilities and Juvenile Arrests for Violence, 1977–2006

sentenced as adults, after controlling forrelevant offender and offense character-istics.22 There appears to be no marginaldeterrent effect from incarcerating mi-nors as adults, which was a cornerstoneof youth policy in the 1990s. One explana-tion for the elevated recidivism rates maybe the effects of adolescents’ exposure toprison life and adult convicts. While like-ly to be separated physically from olderinmates, the institutional climate on theyouth side may hardly differ from otherblocks in the prison: the separation maybe one of degree rather than kind. Indeed,it may even worsen the chaos and vio-lence of correctional con!nement by con-centrating youths who are at their peakages of criminality and diminished self-control.23 Only a few studies have com-pared the correctional experiences ofyouths in prisons and juvenile incarcera-tion, but all agree that placing youths inprisons comes at a cost: they are less like-

ly to receive education and other essentialservices, they are more likely to be vic-tims of physical violence, and they mani-fest a variety of psychological symptoms.24

The residual consequences of adoles-cents’ exposure to violence in adult pris-ons are uncertain. But as a matter of prin-ciple, it is not easy to reconcile this par-ticular harm with the diminished blame-worthiness and culpability of adolescents.Social and behavioral science informedrecent Supreme Court jurisprudence onyouth crime and punishment,25 but crim-inal court sentencing policies more gen-erally are hostile to the new cognitivescience of diminished culpability of ad-olescents.26 Potentially dis!guring pun-ishments seem disproportionate, if notcynical, in the context of this new evi-dence about the blameworthiness of ad-olescents, especially if criminal justicegoals are not well served by transfer andsubsequent incarceration.27



Source: Howard Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report (Washing-ton, D.C.: Of!ce of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, 2006), 236–238,http://ojjdp.ncjrs.gov/ojstatbb/nr2006.

Figure 2Inmates under Eighteen in State Prisons, 1985–2004

There are puzzles and contradictionsbehind these trends. While Americanlawmakers exponentially expanded pris-on capacities for adults starting in the1980s, there was–with rare exceptions–no expansion of the capacities to incar-cerate minors. This was one of two non-events in modern juvenile justice that il-lustrate the dissonance in thinking aboutresponses to serious youth crime. Figure 1shows that the rate of increase in juvenilecon!nement was a fraction of the rate ofincrease in juvenile arrests; as crime de-clined, juvenile courts responded quick-ly by decelerating the rate of placements.

Yet in the juvenile system, even asstates made the choice not to build newjuvenile space and not to dramaticallyincrease youth con!nement, every statetoughened its juvenile delinquency codesrhetorically to deemphasize rehabilita-tion and focus on punishment, retribu-tion, and incapacitation.28 Thus, “get-ting tough” in the juvenile system wasnot an institutional project, but a statu-tory one. Programming was largely un-affected, as the locus of effects of thesenew measures was on court decisions.The changes took several forms, but allhad the combined effect of marginallyincreasing the likelihood of juvenile cor-rectional con!nement or lengthening thetime spent in placement.

The harder work of “getting tough”was outsourced to the criminal justicesystem, with states more often than notusing “regular” criminal law for juveniles.Statutes were amended to ease and ex-pand the number of youths transferredto the criminal courts for sentencing asan adult.29 The results are evident inFigure 2, as the number of youths con-!ned in adult prisons rose (and fell)sharply. The “get tough” measures tookseveral forms. Between 1990 and 1997,every state in America modi!ed both its juvenile and criminal codes to expand

the number of youths eligible for transferto the criminal courts.30 In 1995 alone,nineteen states amended their criminalcodes to facilitate the discretionary trans-fer of delinquents to the criminal court orthe wholesale exclusion of youths fromthe juvenile court.31 Each strategy wasdesigned to increase punishment in num-bers and in severity. Several states adopt-ed mandatory minimum sentences foryouths committed to state juvenile cor-rections authorities. Others adopted sen-tencing guidelines that !xed sentencesin the juvenile system based on a grid ofoffense, offender characteristics, and vic-tim characteristics. Still other states ex-panded eligibility for sentencing minorsto life without parole, or death in prison,and made those sentences automatic up-on conviction for enumerated crimes.32

Prior to the 2010 U.S. Supreme Court rul-ing in Graham v. Florida that banned life-without-parole sentences for juvenileswho did not commit murder,33 approxi-mately 2,484 youths were serving suchsentences in 2008, many as young asthirteen, and many others for crimesother than murder or manslaughter.34

But these developments point to thesecond non-event in the toughening ofjuvenile justice and juvenile incarcera-tion. Certainly, a state that truly wantedto crack down on juveniles and make in-carceration harsher could simply havelowered its age of major ity and sent allits older juvenile offenders to adult pris-ons. Only two did so: Wisconsin andNew Hampshire lowered the age of ma-jority from seventeen to sixteen in the1990s.35 In fact, one state, Connecticut,has begun a process to incrementallyraise its age of majority from sixteen toeighteen.36 New York and North Carolinamaintain the age of majority at sixteen; inmost states, it is still eighteen.

Stopping short of the more obviousand expedient step of lowering the age



of majority, states have instead used anincremental and piecemeal legislativestrategy to criminalize delin quency andthereby allow them to sentence adoles-cents to adult punishment for crimescommitted as minors. But despite thewave of transfer legislation, the currentstatutory landscape is an elaborate gameof chutes and ladders, with some youthsautomatically transferred to the criminalcourts only to be “reverse waived” backto the juvenile courts. As a result, manyadolescent offenders (though no oneknows exactly how many) escape thereach of the criminal law and its harsh-er punish ments. Nevertheless, a largenumber are removed from the juvenileto the criminal courts by statutory exclu-sion, judicial discretion, or the adminis-trative practices and preferences of pros-ecutors.37

Viewed in this way, legislators appearambivalent, refusing to abandon com-pletely the principles of juvenile justice,yet seeking to divide delinquents into twocategories: those worthy of the remedialand therapeutic interventions of the juve-nile court and those who should be aban-doned to the punitive regime of criminaljustice in the name of retribution andpublic safety. The complexity of statelaws, the piecemeal character of the stat-utory landscape, and the fact that moststates have overlapping transfer mecha-nisms suggest a philosophical duality.The punitive and child-saver instinctsfor youth crime coexist uneasily in thecur rent statutory environment, forcing a binary choice between criminal andjuvenile court jurisdiction–a choice that is not well suited to reconcile thesetensions.38

On balance, the business of gettingtough on juvenile offenders was assignedto the criminal justice system, while thejuvenile system remained relatively smalland still wrapped, however thinly, in its

rehabilitative and child-saver clothing.Why did juvenile corrections expand solittle during a time of unprecedented andunrestrained growth in adult corrections?And why did it transform from warehous-ing to embracing smaller, more therapeu-tically grounded facilities?39 The num-bers reveal the tension between two fea-tures of American jurisprudence sur-rounding juvenile offenders. We believedeeply in child-saving, yet we are quickto expose violent children to the harshestpunishments in service to the same pu-nitive instincts that drive mass incarcer-ation of adults. But even there, we pullour punches. We pull back from the brinkof fully embracing punitiveness towardjuveniles, reserving it instead for adults.Not only is the philosophy of child-savingan important normative modi!er of theseinstincts, it is also deeply embedded inthe institutions of juvenile justice andjuvenile corrections.

One episode illustrates the connectionsbetween the visceral push for punitive-ness and political culture. In 1996, formerU.S. Secretary of Education William Ben-nett and two colleagues published BodyCount.40 The book offered a “moral pov-erty” theory of youth crime, rejectingsocial theories of juvenile crime causa-tion that focused on economic poverty,discrimination, family dysfunction, orsavage levels of inequality. Instead, forBennett and his coauthors, it was moralpoverty that characterized a coming waveof “superpredators” who would commitextremely violent crimes and be immuneto rehabilitative interventions. They char-acterized this new breed of young offend-ers as impulsive and remorseless, fearingnot “the stigma of arrest, the pains of im-prisonment, [or] the pangs of conscience.”These (predicted) young criminals wereportrayed nearly as a separate species.The authors’ predictions were based on



data that were compiled through 1993,the peak year of juvenile crime and vio-lence in the United States.41 Their predic-tions turned out to be horribly wrong.42

But the damage was done. The booksupplied strong and scary rhetoric to fuelthe legislative panic that, in general, pro-duced a wave of get-tough legislationacross the country. So strong and persua-sive was this rhetoric that it led one state(Pennsylvania) to build a youth prison in anticipation of a surge of superpred-ators, not a juvenile center that empha-sized rehabilitation and other services.The State Correctional Institute at PineGrove opened in 2000, its plan and de-sign based on population projectionsfrom the superpredator era and with that pro!le of the young offender inmind. At its opening, the prison housed178 young offenders, well below its ca-pacity of 1,000.43 By that time, youthcrime had fallen in Pennsylvania, andthe number of youths below eighteen in adult prisons had fallen to sixty-six.

To !ll this new youth prison, the statemoved young offenders from some tradi-tional correctional settings to Pine Grove,and the state’s juvenile court judges madegood use of the new placement option.Pine Grove today is well occupied, hous-ing approximately one thousand inmatesbelow the age of twenty-one. Built tohouse the expected wave of superpreda-tors, today it is !lled with a heterogeneousgroup of adolescent offenders whose pro-!les are more typical of the variety ofyouth crimes that characterize contem-porary youth dockets.

The character of juvenile incarcerationhas also changed dramatically over threedecades. Beginning in the 1970s, as adultcorrectional populations surged, largejuvenile corrections facilities in severalstates were replaced by smaller facilitieshousing fewer than thirty children per

center, sometimes in community-basedresidential programs but other times in“campuses” that included cluster or resi-dential “pods.”44 Jerome Miller, architectof the Massachusetts reforms, showedthat scandals involving staff abuse ofyouth residents, as well as youth suicidesand uncontrolled violence, often sparkedthese changes. Massachusetts, Pennsyl-vania, Utah, and Florida, among others,moved from large, toxic warehouses tothese smaller, disaggregated dormitory-like units.45 In effect, the capacities ofthese systems were capped, and any ex-pansion required the participation ofthe private sector.46

Yet noxious conditions still prevail inmany juvenile corrections facilities andsystems, and litigation is not uncommon.In Galloway v. Texas,47 for example, plain-tiff Galloway was placed in detention atfourteen and held until he reached nine-teen, the maximum age of juvenile juris-diction, based on unreviewable adminis-trative decisions by facility staff. The trialrecord showed that Galloway and manyothers had been physically and sexuallyabused, subjected to physical punish-ment, abused by other inmates (abusethat was often sanctioned by staff ), anddenied access to counsel. Essential ser-vices–medical care, education, psychi-atric treatment–were found to be sub-standard. More than !ve hundred chil-dren were released from unlawful juve-nile corrections con!nement in Texas as a result of the ruling.

Conditions in New York State juvenilecorrections facilities were investigatedrecently by the Civil Rights Division ofthe U.S. Department of Justice, whichreported similar problems.48 And in California, the state was ordered back tocourt for failure to comply with the termsof a consent decree that committed thejuvenile corrections authority, the Divi-sion of Juvenile Justice of the California



Department of Corrections and Rehabil-itation (formerly the Youth Authority), toconform to professional and legal stan-dards for essential services and the safetyof its wards.49 These cases are not isolat-ed instances; litigation to remedy violent,abusive, and other substandard condi-tions in juvenile incarceration and deten-tion has been repeated across the countryfor decades.

Structurally, federal civil rights litiga-tion in these instances is constrained inits force and reach by the Prison Litiga-tion Reform Act (plra).50 In Galloway,for instance, relief was limited by theplra’s constraints on which conditionscan be litigated, its short paths to termi-nation of existing remedial decrees, andits restrictions on the authority of feder-al judges to order future remedies. Theplra applies fully to juvenile correctionsand detention facilities: Congress classi-!ed juvenile facilities as “prisons” andtheir occupants “prisoners.” In doing so,it erected tall and robust barriers to chil-dren’s assertion of their rights: in effect,they face the same hurdles that adultprisoners do. For children, the problemis compounded because they cannot suein their own name, and also by the factthat Federal Rule of Civil Procedure 17relegates the question of capacity andovercrowding to state law. Under theseconditions, children cannot get to courtwithout a guardian, and most lack thesocial capital and experience to activatethose resources. Furthermore, there sim-ply are no local enforcement mechanismsto ensure compliance with federal litiga-tion. It is up to local district attorneys toenforce the law when abuses are revealed.The political complications are obvious.

Again, we see very different visions ofjuvenile justice and incarceration. One isrepresented by the development of newmodels and institutional designs for therehabilitation of serious juvenile offend-

ers. This vision includes attention notjust to basics such as education, but tonew models for working with childrenand their families to sustain therapeuticsuccesses beyond the time of correction-al con!nement.51 The other vision istypi!ed by institutions that are violent,abusive, and indifferent to the essentialdevelopmental interventions for adoles-cent offenders. Attorney and legal schol-ar Michael Tigar characterizes these asplaces where juvenile punishment hastaken on the distorted values of criminallaw and correctional institutions, whereintervention is secondary to security andpunishment, and where indifference tol-erates abuse and violence.52 In theseplaces, services are thin and differ littlefrom ordinary jails, only that the resi-dents are younger, smaller, and more eas-ily exploited. Between these poles are theinstitutions that struggle to mount effec-tive programs with a population of dif-!cult children who pose security as wellas therapeutic challenges.

Racial disparities in juvenile detentionand incarceration closely resemble racialdisparities in the imprisonment and jail-ing of adults. Considering the negativeconsequences of incarceration on crimeand social well-being, these disparitiesunfortunately may multiply the effectsof other forms of disadvantage and maybecome an endogenous form of inequal-ity that is dif!cult to escape. Social scien-tists call this a “poverty trap.”53

In the 2006 census of juveniles in resi-dential placement, 40.2 percent of resi-dents were African American and 20.5percent were Hispanic, compared to 35percent white.54 These disparities weregreater for person crimes and drug of-fenses (44 percent were African Ameri-can in each category) and less for techni-cal violations (37 percent were AfricanAmerican) and status offenses (33 per-



cent were African American). In fact, 50percent of incarcerated status offenderscounted in the 2006 juvenile correctionscensus were white.

Racial disparities are far worse for pre-trial detention, compared to those whoare incarcerated following a !nding ofdelinquency. Nearly half (48 percent) ofthose detained for person crimes, 45 per-cent detained on drug offenses, and 46percent detained for public order offenseswere African Americans, compared toless than 30 percent whites in each ofthese categories.55 (Public order offensesinclude weapons offenses as well as pub-lic drinking and a range of low level–andhigh police-discretion–misdemeanor of-fenses.)

These disparities are not well explainedby differences in crime rates.56 Studiesusing several designs and analytic strate-gies conclude that racial disparities in thedecision to detain and incarcerate youthsare influenced by race and risk factorssuch as family structure that are correlatedwith race more than criminal behavior.57

Other research implicates fundamentalcognitive and unconscious processes inthe production of disparities. Two stud-ies based on observations of decisions bypolice or probation of!cers illustrate therole of race in the attribution of blame-worthiness, risk of future crime, and rec-ommendations for punishment. Sociolo-gists George Bridges and Sara Steen, ana-lyzing narratives of presentence reportsby probation of!cers in three counties inWashington State, showed that probationof!cers were more likely to attribute thecauses of crime for African Americanyouths to internal character and person-ality attributes rather than external fac-tors such as family, neighborhood, orschool. These internal attributions ledto conclusions about “responsibility,”whereas external attributions tended toreduce culpability by externalizing the or-

igins of crime (and its severity) for whiteyouths to the defendant’s social surround-ings. These internal attributions in turnled to racially disparate attributions ofrisk of future offending and harsher sen-tencing recommendations. Bridges andSteen also noted that a criminal historytends to multiply these effects.

Educational psychologist SandraGraham and organizational behaviorscholar Brian Lowery produced similarresults using an experimental paradigmin which police and probation of!cersmade judgments about culpability andpredictions of future crime followingexposure to race-speci!c or race-neutralsubliminal primes. Compared to of!cersgiven a race-neutral prime, police andprobation of!cers given race-speci!cprimes rated a hypothetical offenderwith more negative traits such as hostil-ity and immaturity, attributed greaterculpability, had higher expectations ofrecidivism, and endorsed harsher pun-ishment. These results were robust tocontrols for consciously expressed be-liefs about African Americans.

Studies based on case-processing dataalso reach the same conclusions, as doesa research summary prepared for the De-partment of Justice. This is true both incriminal court and for juveniles who aretransferred to criminal court.58

The policy studies raise two dif!cultquestions. First, are the effects of dispa-rate outcomes at early stages predictiveof outcomes–including the decision todetain or incarcerate a young offender–at later stages? Researchers disagree onthis point. Some suggest that disadvan-tage at early decision points, such as thedecision to detain or to treat a case for-mally instead of using a diversionary al-ternative, at a minimum carries forwardand perhaps multiplies across decisionpoints. Others suggest that disparities ateach stage are unique to decisions at that



stage, net of !ltering at each stage. In ei-ther case, there is a unique additive com-ponent for race that seems to producedisparate outcomes overall, includingcorrectional placements.59

Second, and more fundamentally, doesthe combined evidence from experimen-tal and observational studies suggest thatracial bias is present in the juvenile justicesystem with suf!cient salience to producedisparities? It is always dif!cult to iden-tify and control for all the counterfactualsthat would have to be defeated in orderto make such a claim. At the least, thesewould include a set of institutional pre-ferences and norms that are dif!cult tomeasure and that are likely to vary widelyacross locales. But what is important tonote is that the two most likely counter-factuals–differences in criminal behav-ior and differences in social risk indicia–are not signi!cant producers of racialdisparities.

Based on the research of Graham andLowery, conscious bias is not a signi!cantproducer of racial disparity either, butsubconscious bias may be, as well as ra-cial differences in punitiveness and racialstereotypes. Sociologist Lawrence Boboand Victor Thompson, for example, sum-marize public opinion research to showthat negative racial stereotypes, antiblackaffect, and collective racial resentmentstranslate into increased punitiveness.60

We have no reason to believe that thismight not apply to probation workersand police of!cers who produce a supplyof cases for the juvenile court. Researchon “colorism” shows that both AfricanAmericans and white Americans associ-ate skin tone with criminality and de-served punishment.61 In a series of testson implicit bias, every population groupexcept African Americans unconsciouslyassociates “African American” with crimeor danger and reacts accordingly.62 Testsinclude recognition of African American

faces in crime situations (including pos-session of weapons)63 and whether toshoot unarmed suspects when they areshown holding ambiguous objects otherthan guns.64 Con!rming what Bridgesand Steen and Graham and Lowery re-ported, the Plant and Peruche tests giv-en to police of!cers produced the sameresults.

The impacts of racially disparate deci-sions in juvenile detention and incarcer-ation go beyond the loss of liberty andexposure to socially and emotionally dis-!guring punishments. Juvenile incarcer-ation attenuates the accumulation of so-cial capital to access job networks andother supports; instead–at a develop-mentally sensitive and strategic periodof transition from adolescence to adult-hood–it leads to the accrual of criminalcapital that sustains delinquency beyondthe time of placement.65 In this way, in-carceration compounds social and racialdisadvantage to sustain inequalities overthe life course,66 with crime itself only apartial explanation of the sources of thatdisadvantage. For minors, developmen-tal trajectories following incarcerationsuggest that crime is less a factor thancascading social disadvantage. Studies of criminality over the life course showthe unique and lasting disadvantage thataccrues from an early incarceration ex-perience, no matter the behavior that ledto the period of incarceration.67 Incarcer-ation at a young age not only increasesthe risk of future incarceration, it mort-gages the long-term prospects of youngmales for marriage, employment, andsocial stability over a lifetime. Even ashort spell in detention adversely influ-ences the outcomes of cases once they getto court, tipping the odds toward harsh-er punishment instead of diversion orprobation.68 Young offenders who aredetained in jails or group homes whiletheir cases work their way through court



are more likely to be placed in a correc-tional institution at the conclusion of thecase than those who return home or toschool as their cases are resolved. Earlycorrectional placement has a multipliereffect on the prospects of future impris-onment. To the extent that incarcera-tion effects carry forward, we might askwhether the social harms of incarcera-tion on young people are simply those of their parents revisited on them–andwhether the harms to them will be revis-ited on their children.69

In the political economy of incarcera-tion, it is remarkable that either a legisla-tive or executive branch would acknowl-edge racial disparity much less seek rem-edies to it. Thus, the efforts of the Depart-ment of Justice and Congress to reduceracial disparities in juvenile con!nementthrough public interventions are coura-geous and noteworthy. Because this stepwas reserved for minors, it again signalsthe special place child-saving holds as anormative imperative and policy prefer-ence in the culture of crime and punish-ment.

To regulate public sector practices thatmight lead to racial disparities, Congresstook a rare step in 1992, passing legisla-tion requiring states that receive feder-al juvenile-justice funds to implementstrategies to reduce disparities (wherethose disparities exist) in the con!ne-ment rates of minority juveniles. Thisprovision, known as the disproportion-ate minority contact statute (dmc),70

seems modest in comparison to Title VII of the Civil Rights Act: it appliesonly to state-run juvenile justice pro-grams receiving federal funds. Failure to comply can cost an agency at least 25percent of its federal juvenile-justicesupport.

Legal scholar Olatunde Johnson71 de-scribes the dmc provision as unique in

several ways. First, it calls on public ac-tors to reduce disparities no matter whatthe cause, no matter whether intentionalor reflective of the types of passive dis-crimination that characterize everydayinstitutional business, even if these prac-tices advance the criminal justice inter-ests of the public agency. Action requiresonly that there be a showing that the agen-cy was complicit in producing disparity.Second, the statute requires states togather analytic data to diagnose the insti-tutional practices or public policies thatproduce racial disparities, and to identifyappropriate steps to change those prac-tices. In effect, the statute requires statesto look beyond “invidious bias” to discov-er and remedy the sources of disparity.States were tasked with submitting inter-vention plans that reflected their analysisof the sources of disparity, developing in-terventions, and assessing the success oftheir efforts. In 2002, Congress broadenedthe mandate of dmc to look not just atcon!nement, but also at any type of con-tact. This expansion recognized the rolethat police and early-stage juvenile justicedecisions play in producing disparities.

There are stories of both success andfailure under dmc. Johnson notes thatwhen dmc succeeds, it is because it lever-aged the power of internal and externallocal advocates to design measures to re-duce disparity. The data analytic com-ponent has also produced informationaltransparency that levels the playing !eldbetween advocates and government of!-cials. It is a process of what legal scholarHeather Gerken calls “federalism all theway down,” in part localizing solutionsand also developing local expertise thatcompetes with interior institutional log-ic and norms.72

Johnson suggests that failures underdmc reflect the weakness of local en-forcement and ambivalence, if not resist-ance, that are, in turn, reflections of the



local political structure. It requires inter-nal change agents within agencies as wellas external agents, especially advocacygroups. Localities could be exposed tolawsuits based on the information devel-oped through the data analytic process,creating an untenable political tension. Aset of political scripts that invokes publicsafety concerns in the face of systemic re-form efforts is a blunt instrument to neu-tralize reform.73 Thus, the recurring re-newal of political support–based on re-search–is essential to sustain the reform.And this, as Johnson points out, is hardlya sure bet, since radically disparate treat-ment is not a strong motivation to expendpolitical capital. The counterargument isthat revelations of the connection be-tween public policy and racially disparatetreatment leading to incarceration makea strong normative argument that politi-cal actors ignore at their own risk. Per-haps the current low-crime era affords amoment to push ahead with this project.

The opposing, if not contradictory,trends in the philosophy and practice ofjuvenile incarceration can be observedempirically in states’ variations in thepractice and reach of juvenile incarcera-tion. At the peak of juvenile incarceration,states varied in their incarceration popu-lations from a low of 70 per 100,000 ju-veniles in Vermont to a high of 583 inLouisiana.74 Explanations for variationare themselves varied: from racial threatand symbolic threats to public order, toviolent crime rates, to loose couplingsbetween juvenile and adult correctionalsystems, to variation in the political trac-tion of “get tough” policies.75 These di-verse explanations matter because theyspeak to different strains in the politicalculture of crime and punishment–inparticular about whether juvenile crimeand punishment is itself a symbolic orsubstantive concern.

Symbolic threats are sociologicallyconnected to structural conditions, in-cluding minority threat, inequality, andpublic manifestations of crime such asgangs. When professor of law JonathanSimon speaks about “governing throughcrime,” he portrays a discourse and sub-sequent political mobilization built oncrime fears that translate into legislativeaction. These threats create emotionsbeyond the facts of crime itself by im-parting social meaning to crime: gangviolence signals the rise of an enemy, forexample, and the trifecta of gangs, guns,and drugs signals a very particular and ur-gent threat to social order. Even propertycrime can translate into a threat throughits spurious connection to violent crime.If crime itself is racially skewed, whetheramong juveniles or adults, then discon-necting symbolic threats from the realfears of crime becomes more dif!cult.

Sorting out these threats is a dif!cultempirical task. An analysis by criminol-ogist Daniel Mears of state variation injuvenile incarceration suggests that it isnot just the threat of violent crime thatexplains differences between states, buta combination of adult crime rates, adultincarceration rates, and juvenile propertycrime rates. What happened to the super-predator discourse about juvenile vio-lence? Why was it not a more powerfulpredictor of juvenile incarceration?Quite likely, the discourse was alreadyincorporated into other “get tough”measures, including adult incarcerationrates and policies, as well as adult crime.

State variation may also conceal inter-nal systemic and political factors thatbear on institutional capacities. Consid-er the stories told earlier about Texas,California, and Pennsylvania (and addNew York to the analysis). Texas madeno changes in capacity in the face of liti-gation and a consent decree. California’sYouth Authority reduced its capacity from



ten thousand a decade ago to less thantwo thousand today in response to litiga-tion. Pennsylvania built a juvenile prisonthat now houses nearly one thousandyoung offenders, but New York State isattempting to close several of its juvenileincarceration facilities, and may yet do soif the Civil Rights Division of the JusticeDepartment proceeds from its investiga-tion to pursue litigation. However, NewYork’s efforts to downsize its system havebeen neutralized by the structure of unioncontracts and political constraints fromlocal legislators fearing adverse economicimpacts from the closing of institutions.There are 241 empty beds out of about300 in the six nonsecure residential facili-ties targeted for closing, and 254 state em-ployees will lose their jobs if the closingsproceed.76 The math suggests part of thereason why closing is so hard to achieve.

The number of minors locked up acrossthe nation is a small fraction of the adoles-cents under the supervision of the juvenileand criminal justice systems, but it casts along shadow over the principles and prac-tice of juvenile and criminal justice. Sep-arate institutions for juveniles, and latera separate court, served the twin goals ofprotecting adolescent offenders from thestigma and brutality of criminal justiceand intervening in their lives to remedythe conditions that animated their antiso-cial behavior. Yet the punitive turn in ju-venile justice increased the use of incarcer-ation by juvenile courts and the expulsionof juvenile offenders to adult jails and pris-ons.77 Not only are both forms of juvenileincarceration plagued by unconstitution-ally cruel conditions and institutional ne-glect, but the emphasis on punitiveness,including the exile of juveniles to the crim-inal justice system, before adolescent de-velopment may do more harm than good.

Three facts suggest that the punitiveturn in juvenile corrections is neither a

socially productive nor a principled path.First, new behavioral and biological re-search about maturity and criminal cul-pability, largely focused on emotionalregulation, impulsivity, decision-making,and other behavioral functioning close-ly linked to brain development and thesocial psychological skills that it con-trols, suggests that children remain im-mature and therefore less culpable wellinto late adolescence.78 Second, adoles-cents who are tried and punished asadults are rearrested and incarceratedmore often, more quickly, and for moreserious crimes.79 They are more likelyto suffer mental health problems, in-cluding traumatic stress reactions, andare less likely to receive effective ser-vices to overcome their developmentalor other behavioral de!cits. And third,lengthened sentences for juvenile of-fenders, whether in juvenile or adult corrections placements, are of no ap-parent consequence to public safety.80

These facts argue for a return to the !rstprinciples of juvenile justice: avoidingharm and stigma and building the socialcapital and human capacity of the child.Declining crime rates, the pervasivenessof racial disparities in detention and in-carceration, the intellectual and politicalexhaustion of the “toughness” paradigmin juvenile justice, and new gains in thescience of adolescent development haveconverged to create an opportunity forprincipled reform. More careful regula-tion and deliberation of the use of incar-ceration can lay the foundation for moreeffective and fair policies. While the lawhas moved toward increasing the incar-ceration of younger teens, social and bio-logical evidence suggests moving in theother direction. Perhaps it is time for thelaw to change course and follow the sci-ence and the principles it evokes.





endnotes1 Sharon Dolovich, “Incarceration: American Style,” Harvard Law & Policy Review 3 (2009): 237.2 Parens patriae is a doctrine commonly associated in both policy and law with the rights and

obligations of the state and courts toward children and incapacitated adults. The diminishedcompetence and autonomy of children is the court’s justi!cation for invoking parens patriaeto supplant parental authority and assert control over children. See Julian Mack, “The Juve-nile Court,” Annual Report of the 32nd Conference of the American Bar Association (1909), 451.

3 In Schall v. Martin (467 U.S. 253, 1984), Justice Rehnquist argued that preventive detentionis designed to protect the child and society from the potential consequences of the child’sown “folly.”

4 Ibid. The court said that the combined interest in protecting both the community and thejuvenile himself from the consequences of future criminal conduct is suf!cient to justifysuch detention. The court rejected claims about accuracy of such predictions, stating that“from a legal point of view, there is nothing inherently unattainable about a prediction offuture criminal conduct” and that a prediction of future criminal conduct is “‘an experi-enced prediction based on a host of variables’ which cannot be readily codi!ed” (citingGreenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 16 [1979]).

5 Philip J. Cook and John H. Laub, “The Unprecedented Epidemic in Youth Violence,” inCrime and Justice: A Review of Research, vol. 24, Youth Violence, ed. Michael Tonry and MarkH. Moore (Chicago: University of Chicago Press, 1998), 27.

6 Barry C. Feld, Bad Kids: Race and the Transformation of the Juvenile Court (New York: OxfordUniversity Press, 1999); Franklin E. Zimring, American Youth Violence (New York: OxfordUniversity Press, 1998).

7 Paul Lerman, “Twentieth-Century Developments in America’s Institutional Systems forYouth in Trouble,” in A Century of Juvenile Justice, ed. Margaret K. Rosenheim et al. (Chicago:University of Chicago Press, 2002).

8 See, for example, Inside Out: Youth Experiences Inside New York’s Juvenile Placement System(Citizens’ Committee for Children of New York, 2009), http://www.cccnewyork.org/publications/CCCjuvenilejusticereport2009.pdf.

9 Jeffrey Fagan, “Juvenile Crime and Criminal Justice: Resolving Border Disputes,” Future ofChildren 8 (2008): 81.

10 Ibid.11 William J. Bennett, John J. Dilulio, Jr., and John P. Walters, Body Count: Moral Poverty–and

How to Win America’s War Against Crime and Drugs (New York: Simon & Schuster, 1996).12 Malcolm W. Klein, The American Street Gang (New York: Oxford University Press, 1995);

Feld, Bad Kids. 13 Placement data for the years between 1993 and 1997 are not available. Prior to 1993, data

were collected every three years as part of the Children in Custody (cic) census, conductedby the Of!ce of Juvenile Justice and Delinquency Prevention. It was based on a mail surveywith response rates that varied by year. Starting in 1997, cic was replaced by the Census ofJuveniles in Residential Placement (cjrp), a one-day count conducted by the U.S. Bureau ofthe Census of all children placed in public and private facilities. The differences in the twodata sets reflect both the types of facilities included and whether residents are counted basedon the state from which they were committed or, in the newer census, the state where theywere placed. When aggregated to examine national trends, any biases resulting from thesedifferences are minimized.

14 Melissa Sickmund, Juveniles in Residential Placement, 1997–2008 (Of!ce of Juvenile Justice andDelinquency Prevention, U.S. Department of Justice, 2010), http://www.ncjrs.gov/pdf!les1/ojjdp/229379.pdf.



15 The rate for adults is 509 per 100,000 persons in prisons and 762 per 100,000 in prisons orlocal jails. Heather C. West and William J. Sabol, Prison Inmates at Mid-Year 2008–StatisticalTables (Bureau of Justice Statistics, U.S. Department of Justice, 2009), Table 1, http://bjs.ojp.usdoj.gov/content/pub/pdf/pim08st.pdf.

16 Sickmund, Juveniles in Residential Placement.17 Melissa Sickmund et al., Census of Juveniles in Residential Placement Databook (National Cen-

ter for Juvenile Justice, 2008), http://www.ojjdp.ncjrs.gov/ojstatbb/cjrp/. 18 These offenses include running away from home, incorrigibility, truancy, curfew violation,

and underage drinking.19 Howard N. Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 2006 National

Report (Of!ce of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice,2006), http://www.ojjdp.ncjrs.gov/ojstatbb/nr2006/.

20 See West and Sabol, Prison Inmates at Mid-Year 2008, Table 21.21 See, for example, Ruth D. Peterson, “Youthful Offenders Designations and Sentencing in

the New York Criminal Courts,” Social Problems 35 (1988): 111–130.22 Andrea McGowan et al., “Effects on Violence of Laws and Policies Facilitating the Transfer

of Juveniles from the Juvenile Justice System to the Adult Justice System: A Report on Rec-ommendations of the Task Force on Community Preventive Services,” Morbidity and Mor-tality Weekly Report 56 (RR-9) (November 30, 2007): 1–11; Donna Bishop, “Juvenile Offend-ers in the Adult Criminal System,” Crime and Justice 27 (2000): 81–167; Fagan, “JuvenileCrime and Criminal Justice.” But see Steven D. Levitt, “Juvenile Crime and Punishment,”Journal of Political Economy 106 (1998): 1156.

23 This separation, however meaningful or substantively vague, was at the heart of the earliestforms of juvenile justice in the nineteenth century, when separate institutions for youthswere created to shield them from the stigma and exploitation of older convicts. The moti-vations, though, were not entirely benevolent. The new youth-only institutions were alsoaccommodations to the growing tendency among judges to avoid harsh punishments bydismissing criminal cases against older children, setting child offenders free without anyform of social regulation or control. See John Sutton, Stubborn Children: Controlling Delin-quency in the United States, 1640–1981 (Berkeley: University of California Press, 1988); andDavid J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic(Boston: Little, Brown, 1971). In 1851, in New York, the Children’s Aid Society opened theHouse of Refuge for Delinquent Children under twelve, ostensibly to separate the “older”cohort of juvenile offenders from the very young ones. This division effectively created adisputed developmental territory between early and later adolescence; reformers used theterritory to contest age-based linkages between vulnerability and culpability and the appro-priate institutional responses.

24 Martin Forst, Jeffrey Fagan, and T. Scott Vivona, “Youth in Prisons and Training Schools:Perceptions and Consequences of the Treatment-Custody Dichotomy,” Juvenile & Family CourtJournal 40 (1989): 1; “The Changing Borders of Juvenile Justice: Transfer of Adolescents tothe Adult Criminal Court,” research brief no. 5 (MacArthur Research Network on AdolescentDevelopment and Juvenile Justice), http://www.adjj.org/downloads/3582issue_brief_ 5.pdf.

25 Two recent Supreme Court opinions cited a body of robust social and behavioral sciencethat demonstrates the diminished culpability of adolescents with respect to regulation ofemotions and impulses, capacity to foresee consequences of their actions, and susceptibili-ty to peer influences. See Roper v. Simmons (543 U.S. 551 [2005]) and Graham v. Florida (No.08-7412, 982 So. 2d 43, reversed and remanded [2010]).

26 Elizabeth S. Scott and Laurence Steinberg, Rethinking Juvenile Justice (Cambridge, Mass.:Harvard University Press, 2008).

27 Fagan, “Juvenile Crime and Criminal Justice.”



28 Feld, Bad Kids; Zimring, American Youth Violence.29 See, for example, Patricia Torbet et al., State Responses to Serious and Violent Juvenile Crime

(Of!ce of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, 1996).30 Fagan, “Juvenile Crime and Criminal Justice”; Donna Bishop, “Juvenile Offenders in the

Adult Criminal System.”31 Torbet et al., State Responses to Serious and Violent Juvenile Crime.32 See State v. Standard, 569 S.E.2d 325, 329 (2002). In general, see The Rest of Their Lives and

The Rest of Their Lives, 2008 Update (Amnesty International and Human Rights Watch, 2005and 2008), http://www.hrw.org/en/node/11578/section/1 and http://www.hrw.org/sites/default/!les/reports/us1005execsum.pdf. The fact that mandatory life-without-parole sen-tences require a predicate of transfer, the cumulative disadvantage of poor counsel andearly-stage detention compound the risks for a life-without-parole sentence through dis-advantages at the early stages of charging and plea bargaining.

33 See Graham v. Florida.34 See The Rest of Their Lives, 2008 Update; also Cruel and Unusual: Sentencing 13- and 14-Year-

Old Children to Die in Prison (Equal Justice Initiative, 2008), http://eji.org/eji/!les/Cruel%20and%20Unusual%202008_0.pdf.

35 Torbet et al., State Responses to Serious and Violent Juvenile Crime.36 See The Connecticut Juvenile Justice Strategic Plan: Building Toward a Better Future (State of Con-

necticut Judicial Branch, 2006), http://www.jud.ct.gov/external/news/JuvenileJustPlan/CJJ_ExecutiveSummary.pdf.

37 Fagan, “Juvenile Crime and Criminal Justice.” 38 A few states developed statutes to try juveniles as adults but sentence them to juvenile cor-

rectional institutions. The theory was that the determination of guilt or innocence shouldrespond to an adult standard of culpability, and that the trial itself was a form of expressivecondemnation for the minor’s offense. However, the reach of these laws was narrow, affect-ing few youths in a small number of states. Moreover, although the laws did succeed inshielding juveniles from placements with adults, they were no more than half-measureswith respect to avoiding the stigma of a criminal conviction. See Patricia Torbet et al.,Juveniles Facing Criminal Sanctions: Three States that Changed the Rules (2000), http://www.ncjrs.gov/pdf!les1/ojjdp/181203.pdf.

39 Even California’s controversial Youth Authority has conformed to this trend; for manyyears it was an exception. However, the total incarcerated juvenile population declinedfrom approximately 10,000 in 1996 to 1,568 today. See 2008 Population Report (Division ofJuvenile Justice, California Department of Corrections and Rehabilitation, 2008), http://www.cdcr.ca.gov/reports_research/research_tips.html.

40 Bennett, Dilulio, and Walters, Body Count.41 Cook and Laub, “The Unprecedented Epidemic of Youth Violence.”42 Zimring, American Youth Violence.43 “Pennsylvania Opens Nation’s First Youth Prison,” Corrections Digest, December 15, 2000. 44 See, for example, Jerome G. Miller, Last One Over the Wall: The Massachusetts Experiment in

Closing Reform Schools (Columbus: Ohio State University Press, 1991).45 See, for example, Lloyd Ohlin et al., “Radical Correctional Reform: A Case Study of the

Massachusetts Youth Correctional System,” Harvard Educational Review, special issue onThe Rights of Children, 120 (1974).

46 Edmund F. McGarrell, Juvenile Correctional Reform: Two Decades of Policy and ProceduralChange (Albany: State University of New York Press, 1988).



47 Civ No. 1:07-CA-276 (W.D. Tex.). See also Sylvia Moreno, “In Texas, Scandals Rock Juve-nile Justice System,” The Washington Post, April 5, 2007.

48 Letter from Loretta King, Acting Assistant Attorney General, to Governor David A. Paterson,Re: Investigation of the Lansing Residential Center, Louis Gossett, Jr. Residential Center,Tryon Residential Center, and Tryon Girls Center, August 14, 2009, http://www.justice.gov/crt/split/documents/NY_juvenile_facilities_!ndlet_08-14-2009.pdf.

49 Farrell v. Gate, RG03-079344 (Cal. Super. Ct. 2004).50 See 18 U.S.C. section 3626 (1995).51 See Michelle Inderbitzin, “Reentry of Emerging Adults: Adolescent Inmates’ Transition Back

Into the Community,” Journal of Adolescent Research 24 (2009): 453. Also see Scott Huey et al.,“Mechanisms of Change in Multisystemic Therapy: Reducing Delinquent Behavior throughTherapist Adherence and Improved Family and Peer Functioning,” Journal of Consulting andClinical Psychology 68 (2000): 451.

52 Michael E. Tigar, “What are We Doing to the Children?: An Essay on Juvenile (In)Justice,”Ohio State Journal of Criminal Law 7 (2010): 849.

53 Robert J. Sampson and Jeffrey Morenoff, “Durable Inequality: Spatial Dynamics, SocialProcesses, and the Persistence of Poverty in Chicago Neighborhoods,” in Poverty Traps,ed. Samuel Bowles, Steven Durlauf, and Karla Hoff (New York: Russell Sage Foundation,2006), 176–203.

54 Sickmund et al., Census of Juveniles in Residential Placement Databook.55 Juvenile arrest rates for drug offenses are strongly at odds with their involvement in drug

use and drug selling. See, for example, Leonard Saxe et al., “The Visibility of Illicit Drugs:Implications for Community-Based Drug Control Strategies,” American Journal of PublicHealth 91 (2001): 1987.

56 Ibid. See also, Donna M. Bishop, “The Role of Race and Ethnicity in Juvenile Justice Pro-cessing,” in Our Children, Their Children: Confronting Racial and Ethnic Differences in AmericanJuvenile Justice, ed. Darnell F. Hawkins and Kimberly Kempf-Leonard (Chicago: Universityof Chicago Press, 2005).

57 George S. Bridges and Sara Steen, “Racial Disparities in Of!cial Assessments of JuvenileOffenders: Attributional Stereotypes as Mediating Mechanisms,” American Sociological Review63 (1998): 554; Sandra Graham and Brian S. Lowery, “Priming Unconscious Racial Stereo-types about Adolescent Offenders,” Law & Human Behavior 28 (2004): 483.

58 Kareem L. Jordan and Tina L. Freiburger, “Examining the Impact of Race and Ethnicity onthe Sentencing of Juveniles in the Adult Court,” Criminal Justice Policy Review 21 (2010): 185.

59 Carl E. Pope, Rick Lovell, and Heidi M. Hsia, Disproportionate Minority Con!nement: A Reviewof the Research Literature from 1989 through 2001 (Of!ce of Juvenile Justice and DelinquencyPrevention, U.S. Department of Justice, 2002), http://www.ojjdp.ncjrs.gov/dmc/pdf/dmc89_01.pdf; David Huizinga et al., Disproportionate Minority Contact in the Juvenile Justice System:A Study of Differential Minority Arrest/Referral to Court in Three Cities (U.S. Department ofJustice, 2007), http://www.ncjrs.gov/pdf!les1/ojjdp/grants/219743.pdf.

60 Lawrence Bobo and Victor Thompson, “Unfair by Design: The War on Drugs, Race, andthe Legitimacy of the Criminal Justice System,” Social Research 73 (2006): 445.

61 See, for example, Jennifer L. Eberhardt et al., “Seeing Black: Race, Crime, and Visual Pro-cessing,” Journal of Personality and Social Psychology 87 (2004): 876; Jennifer L. Eberhardt et al., “Looking Deathworthy: Perceived Stereotypicality of Black Defendants PredictsCapital-Sentencing Outcomes,” Psychological Science 17 (2006): 383.

62 Anthony Greenwald and Linda Hamilton Krieger, “Implicit Bias: Scienti!c Foundations,”California Law Review 94 (2006): 945.

63 Eberhardt et al., “Seeing Black.”



64 E. Ashby Plant and B. Michelle Peruche, “The Consequences of Race for Police Of!cers’Responses to Criminal Suspects,” Psychological Science 16 (2005): 180.

65 Patrick Bayer, Radi Hjalmarsson, and David Pozen, “Building Criminal Capital Behind Bars:Peer Effects in Juvenile Corrections,” Quarterly Journal of Economics 124 (2009): 105. Bayerand colleagues show that adolescents placed in correctional institutions are more likely thanthose in smaller residential placements to form stronger peer networks with other delin-quents that lead to higher rearrest rates within two years of release.

66 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation,2006); Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes DisadvantagedNeighborhoods Worse (New York: Oxford University Press, 2007).

67 Robert J. Sampson and John H. Laub, Crime in the Making: Pathways and Turning Points throughLife (Cambridge, Mass.: Harvard University Press, 1993); Jeffrey Fagan and Richard B. Free-man, “Crime and Work,” Crime and Justice 25 (1999): 113.

68 Fagan and Freeman, “Crime and Work.” Also see Donna M. Bishop, “The Role of Raceand Ethnicity in Juvenile Justice Processing”; Rodney L. Engen, Sara Steen, and George S.Bridges, “Racial Disparities in the Punishment of Youth: A Theoretical and Empirical As-sessment of the Literature,” Social Problems 49 (2002): 194; Donna M. Bishop and CharlesE. Frazier, “Race Effects in Juvenile Justice Decision-Making: Findings of a StatewideAnalysis,” Journal of Criminal Law and Criminology 86 (1996): 415.

69 See, for example, Christopher Wildeman, “Parental Imprisonment, the Prison Boom, andthe Concentration of Childhood Disadvantage,” Demography 46 (2009): 265. Also see BruceWestern and Christopher Wildeman, “The Black Family and Mass Incarceration,” Annalsof the American Academy of Political and Social Sciences 621 (2009): 221.

70 See Act of Nov. 4, 1992, Pub. L. No. 102-586, section 2(f)(3)(A)(ii), 106 Stat. 4982, 4993–94(codi!ed as amended at 42 U.S.C. section 5633 [Supp. iii 2005]).

71 Olatunde C.A. Johnson, “Disparity Rules,” Columbia Law Review 107 (2005): 374.72 Heather Gerken, “Federalism All the Way Down?” Harvard Law Review (forthcoming).73 See Jonathan Simon, Governing through Crime: How the War on Crime Transformed American

Democracy and Created a Culture of Fear (New York: Oxford University Press, 2007).74 Sickmund, Juveniles in Residential Placement.75 Daniel Mears, “Exploring State-Level Variation in Juvenile Incarceration Rates: Symbolic

Threats and Competing Explanations,” The Prison Journal 86 (2006): 470.76 Matt Schwarzfeld, “Fewer Lock-Ups, Enough Money?” City Limits Weekly, February 25, 2008.77 In addition to expanding the crime categories that triggered transfer to the criminal court,

many states reduced the minimum age at which offenders could be sentenced by criminalcourts to age ten or younger. In a few states, all barriers to criminal court were removeddown to the age of infancy; Snyder and Sickmund, Juvenile Offenders and Victims.

78 For a discussion of this evidence, see Roper v. Simmons (543 U.S. 551 [2005]); and Graham v.Florida (560 U.S. 130 S. Ct. [2010]). See also Scott and Steinberg, Rethinking Juvenile Justice.

79 Andrea McGowan et al., “Effects on Violence of Laws and Policies.”80 Thomas A. Loughran et al., “Estimating a Dose-Response Relationship between Length of

Stay and Future Recidivism in Serious Juvenile Offenders,” Criminology 47 (2009): 699;Daniel Nagin, Francis T. Cullen, and Cheryl Lero Johnson, “Imprisonment and Reoffend-ing,” Crime and Justice 38 (2009): 115; Anthony N. Doob and Cheryl Marie Webster, “Sen-tence Severity and Crime: Accepting the Null Hypothesis,” Crime and Justice 30 (2003): 143;Emily G. Owens, “More Time, Less Crime? Estimating the Incapacitative Effect of SentenceEnhancements,” The Journal of Law and Economics 52 (2009): 551.

contradictions of juvenile crime & punishment

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