Getting smart about getting tough: juvenile justice and the possibility of progressive reform.
A. Juvenile Correctional Facilities.
B. Traditional Alternatives
1. Boot Camp
3. Wilderness Challenges
4. Intensive Supervision
C. Hybrid Approaches
1. Florida Environmental Institute's Last Chance Ranch
2. Department of Justice Violent Juvenile Offender Program
3. Serious Violent Juvenile Offender Project
4. Systemic Alternatives: Small Facility Networks VII. REFORM: PROPOSALS AND SOLUTIONS VIII. POLITICAL REALITY: IS REFORM POSSIBLE? IX. POLITICAL STRATEGY FOR REFORM X. CONCLUSION
Delinquency is a community problem. In the final analysis the means for
its prevention and control must be built into the fabric of community life.
This can happen only if the community accepts its share of responsibility
for having generated and perpetuated paths of socialization that lead to
sporadic criminal episodes for some youths and careers in crime for
The problem of serious, chronic, and violent juvenile offenders(2) arises at the nexus of numerous social welfare issues because these youths tend to grow up in environments in which both family structures and opportunity structures have deteriorated.(3) Poverty, inadequate housing, inadequate education, racism, child abuse, teen pregnancy, drug addiction, alcoholism, and endless other social ills can push youths onto paths of violent and criminal behavior.(4) Eradicating juvenile crime without addressing its relationship to these other issues is an impossibility.
Any juvenile justice system, then, must be looked at within this social context. Precisely because the problem of juvenile crime is directly related to these other issues, the juvenile justice system cannot eradicate juvenile crime independently. It serves as an escape hatch to deal with the most problematic juveniles without resolving the broader social problems that cause their behavior. Society makes value judgments about what level of juvenile crime is tolerable, what level of recidivism is acceptable, and at what point society is willing to give up on youths and lock them in secure facilities, considering in the balance the public's willingness to bear the costs of eliminating other related social problems.(5)
Thus, the juvenile justice system acts as a compromise at some level between rehabilitation and punishment, treatment and custody. It pursues two different models as it seeks to protect both the juvenile offenders, as victims of social disintegration, and the citizens against whom juveniles offend.(6) By nature, such a system combines social services and criminal justice, acting as a welfare agency to protect the best interests of the youths within its custody and as a legal authority to punish and control juveniles' deviant behavior.(7) This duality creates an internal inconsistency, as protecting juvenile offenders directly conflicts with public protection from the offenders' violent behavior.(8)
Historically, the juvenile justice system in the United States has struggled with this inconsistency by using rehabilitative and punitive treatments to balance the system's competing goals. The balance between rehabilitation and punishment has shifted numerous times, representing changes in the political climate. Perceived increases or decreases in crime rates affect the rhetoric of public debate and influence the political infrastructure to favor one model over the other.(9) Currently, public debate has moved the balance heavily toward the punitive side of a continuum that runs from pure treatment to pure punishment.(10) In recent years, some legislatures have endorsed a more punitive model of juvenile justice without adopting corresponding rehabilitative or treatment elements.(11) By shifting to this more punitive model, the political process has moved toward a strategy that consistently has been ineffective in reducing juvenile crime.(12)
This Note argues that progressive reform is required to regain a fair balance between rehabilitation and punishment. The shift away from rehabilitation weakens the juvenile justice system's ability to enable juvenile offenders to take responsibility for themselves and to protect them as victims of an imperfect society. Although shifting away from protecting offenders may resolve the internal inconsistency of the system itself, it fails to respect the broader balance between the societal cost of eradicating social welfare problems and society's willingness to tolerate some level of juvenile crime. The punitive model permits society to punish youths for society's own failure in solving social welfare problems.
Progressive reform, as defined herein, seeks to establish an equilibrium between rehabilitation and punishment through the creation of a comprehensive system that emphasizes both. Punishment and rehabilitation are not inherently inconsistent goals within the context of juvenile justice; these two goals can be made consistent through progressive reform measures, such as immediate interventions, intermediate sanctions, small facilities, intensive rehabilitation, and community-based confinement. For the vast majority of offenders, a balanced system is more cost effective than a system emphasizing either extreme. A balanced system preserves scarce societal resources by limiting the scope of the most costly treatments to those most in need of them.(13) Such a system also is more effective in reducing recidivism over the long term because it provides comprehensive and consistent dispositions of offenders.(14)
This Note discusses a model of progressive reform of juvenile justice systems and the political possibility of such reform at the state level. Part II provides a broad overview of the historical development of the juvenile justice system. The current debate about the role of the juvenile justice system is discussed in Part III and is then contrasted to the reality of the current system in Part IV. Part V discusses the current reforms taking place generally throughout the juvenile justice system, and Part VI explains alternative reform measures. In Part VII, the various measures for reform are explained and a comprehensive approach is proposed. Finally, Part VIII and Part IX discuss the political reality that interferes with the reform process and a strategy for overcoming that reality.
II. HISTORY OF THE JUVENILE JUSTICE SYSTEM: FROM SALVATION TO PUNISHMENT
Historically, youths have held a special status in the law, distinct from that of adults.(15) The emergence of the current juvenile justice system in the United States, however, began with the rise in urbanization and industrialization in the late nineteenth century.(16) American society generally, and Progressive-Era(17) reformers specifically, became more concerned with protecting youths in the work force and educating indigent youths than with punishing their wrong doing.(18) Believing that poor environment rather than willful behavior caused delinquency, these reformers pushed for a rehabilitative model of handling delinquent youths.(19)
The rehabilitative model removed the processing of youths from adult courts, in the belief that a separate court system could provide youths with greater protection.(20) This new court acted under the doctrine of parents patriae,(21) where the state acted in the best interests of the juvenile, seeking to reform the youth while protecting society.(22) The system promoted individualized treatment of delinquents, attempting to rehabilitate them by correcting the mental and moral deficiencies in their characters.(23)
Over time, however, the actual function of the juvenile courts fell short of these aims.(24) Initially premised on individualized treatment for each offender, the system soon moved toward aggregate treatment as it became overburdened by growing numbers of juvenile offenders.(25) As the system took on a factory-like approach to dispositions, youths would pass through the system numerous times with little more than a slap on the wrist.(26) Juvenile justice systems lacked resources to implement effective, individualized treatment programs. Instead, offenders were placed in large congregate institutions that provided little treatment, if any. Youths were placed in these facilities for periods ranging from weeks to years, and the treatment or response was not tailored to the severity of the crime.(27) Moreover, these facilities provided no follow-up treatment to prevent recidivism, and instead released offenders into the community without guidance.(28)
By the 1960s, the discrepancy between the rehabilitative rhetoric and the mass-production reality of these systems had become obvious. The Supreme Court reacted to this discrepancy by recognizing constitutional protections in the juvenile justice system.(29) In In re Gault,(30) the Court mandated procedural safeguards for juveniles, finding that the actual function of the juvenile courts differed from the ideological premise of parents patriae because it no longer prescribed treatment on an individualized basis.(31) By mandating due process rights for juveniles, the Court unintentionally necessitated a formalization of juvenile court proceedings.(32) With the imposition of formal safeguards, juvenile courts explicitly connected crime and punishment to their proceedings.(33) The focus on punishment diminished the importance of individualized disposition by pushing the system away from rehabilitation.(34)
Two major developments occurred in the years following Gault: labeling theory came to the forefront of the movement to reform juvenile justice;(35) and, more importantly, several states, most notably Massachusetts, began full-scale restructuring of their juvenile justice systems.(36) Under both developments, minor offenders were diverted from the juvenile justice system altogether, such that criminal offenders became the primary focus of the juvenile courts.(37)
A perceived increase in juvenile crime and crime in general during the late 1970s and early 1980s deepened punitive sentiment, further pushing legislative and judicial action toward that paralism.(38) Rehabilitation lost its importance in the public debate over how to process juvenile offenders, and state legislatures and courts began to ease the process by which juvenile offenders could be transferred to adult court for processing.(39) Sentences became longer and more certain as the public pushed to "get tough" on juvenile crime.(40)
III. THE CURRENT DEBATE
Crime is a major focus of public attention. Americans increasingly view their world as a dangerous and violent place to live, and, in response, favor increasingly harsh sanctions for criminal activity.(41) This "get tough" mentality has flowed from the public debate into the state legislatures and frequently focuses on juvenile crime.(42) In recent years, state legislatures have passed a variety of measures mandating harsher sentences for violent juveniles, easing restrictions on transferring juvenile cases to adult court, and facilitating public access to juvenile court records.(43)
Recent Federal Bureau of Investigation (FBI) statistics indicate that public and state government concern about juvenile crime is not unfounded. Although the overall violent crime rate has dropped in recent years, and is currently at its lowest rate since 1990, the current rate is still significantly higher than in 1985.(44) According to the FBI's Uniform Crime Reports, juvenile arrests for violent crime increased by 47% between 1988 and 1992, while adult arrests for violent crime increased by only 19% over the same period.(45) Although the rate of juvenile violent crime arrests was relatively constant from 1972 until the late 1980s, it broke out of its historic range in 1990 and has grown continually since.(46)
In response to these increases in juvenile crime and the significant media attention paid to them, policy-makers are taking action to toughen sanctions on juveniles. This legislative reaction is a relatively new trend. Because it is based on a theory that incapacitation or other punishment is the most effective way to counter juvenile crime, this legislative reaction departs from the rehabilitative tradition underlying juvenile corrections.
Historically, four different goals have formed the basis of juvenile corrections policy, each goal relying on different presumptions.(47) Programs for juvenile offenders have been based on the philosophical goals of either rehabilitation, deterrence, incapacitation, or "just desserts" (recontribution).(48) Corrections policies attempt to further some combination of these goals.
The traditional foundation for the juvenile justice system is rehabilitation.(49) Rehabilitation is directed toward decreasing recidivism as well as attempting to instill in juvenile offenders some hope for their own futures by teaching internal control, providing them alternative opportunities, and changing their thought patterns, ideals, and values.(50)
Currently, such rehabilitative approaches address remedial education, skills and job training, family and individual therapy, and other treatments aimed at turning an errant youth into a productive member of society.(51) Rehabilitative efforts are generally successful only where there are legitimate opportunities available for offenders when they leave the juvenile facility.(52) Since the mid-1970s, most state juvenile systems have moved away from the rehabilitative approach,(53) in part as a result of several studies showing rehabilitative programs to be expensive, time consuming, and not sufficiently successful at reducing recidivism.(54) A variety of programs that include a rehabilitative approach have proven effective, however, at reducing recidivism and thus "rehabilitating" juveniles.(55)
The deterrence rationale aims to dissuade juvenile offenders from reoffending and to keep other juveniles from committing the same crimes.(56) Relying on a causal link between criminal acts and subsequent punishment,(57) the deterrence model presumes both a rational thought process behind violent crimes(58) and a justice system that provides quick and predictable responses.(59)
Incapacitation seeks to eliminate opportunities for juveniles to reoffend by wholly restricting their freedom.(60) It is an immediate solution to reducing some juvenile crime because it gets juvenile offenders off the street. Nevertheless, it provides only a short-term solution because it is prohibitively expensive to incarcerate all dangerous teenagers until they are past the age where they are likely to commit future crimes.(61)
Moreover, for incapacitation to be effective at reducing crime, it must rely on widespread apprehension and sentencing of actual current offenders as well as potential future offenders.(62) The incapacitation approach necessarily also presumes that accurate predictors are available to determine what types of individuals are likely to be future offenders.(63) This presumption is problematic(64) given that tests to predict who will be a future offender rarely produce accurate results.(65) Despite these problems, some policy-makers might still favor the incapacitation approach if they believe that rehabilitation does not work, and that, at the least, incarceration will keep some juveniles from reoffending.(66) Thus, when a state chooses to incapacitate as many juveniles as its budget can afford, it rarely has a meaningful basis for choosing appropriate juveniles to lock up.
Finally, a "just desserts" approach seeks primarily to provide equity of punishment(67) with methods such as mandatory sentencing guidelines based on a grid of graduated offenses, age, and previous record.(68) Retributive systems generally do not try to change behavior, although they could have a deterrent effect on the behavior of past and future offenders by scaring them out of a life of crime.(69) As is the case with other deterrent models, however, a "just desserts" system can deter juveniles from offending or reoffending only if potential offenders engage in rational behavior and law enforcement responds consistently, both of which are questionable presumptions.(70)
Of the above four models, the rehabilitation model was dominant until the 1970s, when fear of rising juvenile crime, buttressed by the "nothing works to rehabilitate" research results, shifted the direction of the juvenile systems toward the hard line.(71) Within the current political discourse, rehabilitative approaches have been characterized as "soft" on juvenile offenders.(72) Models traditionally reserved for adults, such as incapacitation, "just desserts," and deterrence models based on substantial punishments, are characterized as "tough" on juvenile offenders.(73) Recent state and federal legislative changes affecting juvenile crime have relied on incapacitation and "just desserts" to reform the juvenile justice system.(74) By modeling reforms on these punishment-oriented policies, the legislatures purport to be taking a "tougher" stance on juvenile crime to allay public fears.(75) In most states, however, the current systems are not wholly punitive, instead mixing rehabilitation, incapacitation, and retribution.(76)
IV. THE CURRENT STATE: WHERE THE SYSTEM STANDS
While many believe the current system is not tough enough on juveniles, a close look at the current juvenile justice system reveals that it is anything but "soft." Despite popular conceptions, empirical data demonstrate that the system increasingly is handling juveniles seriously. First, the juvenile system in the United States handles an increasing number of cases each year; juvenile courts processed an estimated 1.47 million delinquency cases in 1992, which represents a 26% increase over 1988.(77)
Second, the juvenile justice system increasingly handles cases formally rather than informally. In 1991, 50% of juvenile cases were petitioned formally to a judge, while 50% were handled informally or dismissed.(78) This figure represents an increase over formal processing in 47% of juvenile cases in 1987.(79) Thus, the juvenile justice system increasingly is using formal procedures rather than dismissing cases or using informal procedures, such as referral of juveniles to community facilities. Moreover, the juvenile justice system more frequently is using its most serious weapon against juveniles: transfer to criminal court.(80) In 1992, 11,700 delinquency cases were transferred to a criminal court.(81) This figure represents an increase of 68% from 1988 to 1992.(82) This figure compares to an increase of 26% over the same period in the number of delinquency cases handled by juvenile courts.(83)
Third, the seriousness of court responses is related directly to the seriousness of the crime. For example, a study of violent offenders' treatment by juvenile courts in ten states found that juvenile courts formally adjudicated 90% of homicide cases, 87% of robbery cases, 81% of violent sex offense cases, and 69% of aggravated assault cases.(84) In these ten states, 53% of all murder referrals of juveniles in juvenile court, 55% of rape referrals, and 44% of all aggravated assault referrals resulted in guilty dispositions.(85) These statistics are virtually the same for adults tried in criminal court for murder and rape, and are substantially more serious than those for adults tried in criminal court for aggravated assault.(86)
Although juvenile courts are at least as "tough" on juveniles as criminal courts are on adults in the areas of formal processing and convictions, they are less "tough" in sentencing. In state criminal court, 52% of those arrested for murder, 47% of those arrested for rape, and 10% of those arrested for aggravated assault are ultimately incarcerated for these crimes.(87) For those sentenced in juvenile court, however, only 33% of juveniles arrested for murder, 18% of juveniles arrested for rape, and 14% of juveniles arrested for aggravated assault are ultimately placed in secure confinement.(88)
It is unclear whether juveniles receive longer sentences for the same crimes adjudicated in criminal versus juvenile court.(89) Some studies show that juvenile systems provide harsher sentences for juveniles than do criminal court systems.(90) For example, a study comparing the severity of juvenile and adult court sanctions for juveniles aged sixteen to seventeen who were accused of burglary and robbery in New York and New Jersey found that dispositions in juvenile courts were no less severe than in adult courts.(91)
Other studies, however, show that juveniles sentenced in juvenile court receive lesser sentences than those adjudicated for the same crimes in adult criminal court. For example, a study of Boston, Newark, and Phoenix criminal justice systems determined that three-fourths of the juveniles convicted upon transfer to criminal court were sentenced to prison, and they received significantly longer sentences than those retained in the juvenile system.(92)
It appears, then, that the current system contains punitive elements and is not "soft" on juvenile criminals. In addition, it metes out sanctions inconsistently, often leading to over-deterrence and excessive punishments for less serious offenses. It therefore must be the public outcry, not the statistical reality, that is driving current reform of the juvenile justice system.
V. GETTING TOUGH: CURRENT REFORM
Seeking to strengthen sanctions for juvenile offenders, legislative actions currently focus juvenile justice reform on transfers to criminal court.(93) Despite research that demonstrates significant drawbacks to this approach, transfers are becoming increasingly popular in response to public concern over juvenile violent crime.(94)
The transfer of juveniles to criminal court-also called waiver or certification--is the most severe response to juvenile crime currently available.(95) Decisions to increase the availability of transfer, however, rely on two flawed presumptions: that adult criminal courts deal more effectively with certain juveniles than do juvenile courts and that the current system fails to transfer enough of the most violent juveniles to adult court. Currently, all states allow juveniles to be tried in criminal court under certain circumstances.(96)
A juvenile case may be transferred to criminal court for trial in one of three ways: judicial waiver, prosecutorial discretion, or legislative waiver.(97) Every state is different, but each uses one or more of these three legal tools. Judicial waiver, the most common method, empowers juvenile court judges to waive jurisdiction over cases and transfer them to criminal court.(98) In many states, statutes limit such transfers by age, offense, or offense history.(99) Frequently, statutory criteria such as the juvenile's amenability to treatment also must be considered.(100) An alternative method used in some states gives prosecutors authority to file certain juvenile cases in either the juvenile or criminal court under concurrent jurisdiction statutes.(101) This authority is typically limited by age, and is usually confined to the most serious or violent crimes or to repeat offenders.(102)
Finally, state legislatures also may waive large numbers of young offenders to criminal court by statutorily excluding them from juvenile court jurisdiction if they are accused of certain offenses.(103) Most states with legislative waiver have provisions allowing the juvenile to be removed from the criminal justice system and petitioned or charged in juvenile court.(104) State waiver laws also typically set minimum age limits for transferable offenses.(105) Most often, legislative waiver excludes from juvenile courts those juveniles accused of serious offenses such as murder and other offenses against persons.(106) Nationally, the use of these three methods of waiver is expanding rapidly.(107)
The literature on waiver is divided and often contradictory as to whether waiver is beneficial, harmful, or merely ineffective. Nevertheless, it is possible to categorize the advantages perceived by proponents of waiver and the disadvantages perceived by critics, whether or not there is consistent factual data to support their conclusions.
Proponents of juvenile waiver point to four benefits of the trend to use waiver more frequently. First, on a political level, waiver satisfies the public's desire to toughen the discourse on violent juveniles and to make juveniles' treatment more severe.(108) The public increasingly demands that violent juveniles be tried in adult criminal courts because the public perceives adult courts as willing and able to punish juveniles more harshly than juvenile courts.(109)
Second, proponents of waiver point to data suggesting that waiver results in more severe sanctions and long term confinement of violent offenders--sanctions that are sometimes unavailable in state juvenile court systems.(110)
Third, supporters of the expanded use of waiver point out that it may be the only appropriate response for juveniles who cannot be rehabilitated.(111) Because some evidence suggests that a very small percentage of juveniles are so violently and chronically problematic that they cannot be helped, these analysts assert that trying to rehabilitate recidivists is a waste of valuable resources that could be spent on less violent offenders who are not immune to treatment.(112)
Fourth, proponents argue that legislative waiver(113) in particular has unique benefits because it is more predictable and consistent than judicial or prosecutorial waiver.(114) Researchers have found that these two qualities are necessary for any particular sanction to deter juvenile crime.(115) In addition, proponents of legislative waiver argue that it is intended to eliminate the broad discretion of judges and prosecutors, thereby eliminating potential problems of discrimination.(116)
Critics of the current use of juvenile waiver point to different research and raise other issues to argue that waiver is at best ineffective and at worst counterproductive. These commentators advance at least five different arguments in this context. First, critics point out that data indicating juveniles are held more accountable in adult facilities is contradicted by many studies demonstrating the opposite conclusion.(117) In a 1980-1988 study of Tennessee, Virginia, Mississippi, and Georgia courts, researchers concluded that criminal courts were far more likely than juvenile courts to release juveniles convicted of serious crimes. Although 55% of all waivers resulted in probation and 25% resulted in acquittals or dismissed charges, a mere 11% resulted in incarceration of the juvenile offender.(118) Most juveniles transferred to the criminal courts were individuals who would have been sanctioned with secure confinement in a juvenile facility had they been processed in juvenile court.(119)
Waiver opponents also note studies showing that juveniles plea bargain to much lower sentences in criminal court than they could have received in juvenile court(120) and ultimately serve less time than those sentenced in juvenile courts.(121) Such discrepancies in treatment between the two courts may be the result of two factors: criminal juries and judges are more likely to treat juveniles less severely because of their age, and prosecutors often decide that dismissing charges or plea bargaining with juveniles makes sense to preserve prosecutorial resources for more threatening adult criminals with longer records.(122)
Second, opponents of waiver argue that it is used in an inappropriate manner. Although considered the harshest sanction, waiver is not reserved for the most dangerous juveniles. Instead of waiving only the most dangerous offenders, juvenile officials often waive property offenders.(123) Multiple studies have found that juveniles waived into adult court are not necessarily the most chronic or violent offenders.(124) According to the Department of Justice (DOJ), from 1980 to 1988, states showed an increase in waiver for property offenses and a proportional decrease in waiver for more serious crimes against persons.(125)
Third, waiver opponents argue that when juveniles convicted in criminal courts are then sentenced to adult correctional facilities, the harmful effects of such confinement outweigh any possible rehabilitative effect on the juvenile.(126) Sexual and physical assaults against juveniles are more frequent in adult facilities than they are in juvenile facilities.(127) Comparative victimization rates show that 37% of juveniles are victims of violence in juvenile training schools, but 46% of juveniles are victims of violence in adult facilities.(128) Only one quarter of juvenile training school prisoners are assaulted with a weapon while in confinement, compared to one third of juveniles in adult facilities.(129) Additionally, sexual assault is five times more likely,(130) and beatings by staff are twice as likely for juveniles housed in prisons as opposed to juvenile facilities.(131) Thus, opponents argue, sentencing juveniles to adult criminal corrections facilities tends to be counterproductive because exposure to violence in such facilities will likely cause subsequent violent crime.(132)
Sentences to adult facilities also have been shown to be less effective at rehabilitating offenders because adult facility treatment methods emphasize retribution and control rather than rehabilitation. Thus, juveniles in adult facilities are less likely to receive case management to ensure that rehabilitative counseling, health care, education, vocational training, and other services are integrated and tailored to their situations.(133)
Fourth, regardless of whether the juvenile is sentenced to a juvenile or an adult correctional facility, phenomena associated with waiver reduce the rehabilitative success rate for waived juveniles. For example, the length of time required to process a juvenile in the criminal justice system may cause transfer to be less effective than processing in the juvenile justice system because the period between arrest and sentence is longer in some jurisdictions. In addition, the threat of adult courts does not provide significant certainty of consequences, and thus loses its effectiveness, because of the significant amount of discretion available in the waiver process.(135)
Fifth, opponents argue that, although discretion and its resulting inconsistency in treatment are problematic because they weaken any deterrent effect, even more problematic is their racially discriminatory effect. Several studies demonstrate that non-white youths are more likely to be referred to criminal court, more likely to be detained before trial, and more likely to be incarcerated.(136) Even though touted as non-discretionary, legislative waiver does not eliminate the racial discrimination problem. One study found that 54% of non-white juvenile offenders tried in the criminal system were sent to the grand jury, as opposed to only 38% of white juvenile offenders arrested for the same crimes.(137)
In summary, proponents argue that waiver represents "getting tough" on juvenile crime, which is what the public wants; that it is the only option for juveniles who cannot be rehabilitated; that it provides tough sentences for dangerous juveniles; and that when legislative waiver in particular is used, it is a deterrent because of its predictability and consistency. Critics of the current use of waiver take issue with the assertion that all is lost for the worst offenders(138) and point to a variety of studies that contradict the notion that waiver produces tougher outcomes than juvenile court. Critics also cite empirical studies demonstrating that legislative waiver is not an effective deterrent. Waiver critics further note that waiver is often used inappropriately--although it is the harshest treatment available for juveniles, it is not reserved for the most dangerous juveniles. Critics note that when waived juveniles are placed in adult facilities, the harm they encounter in the environment (as well as the lack of educational, vocational, and counseling programs) virtually ensures that they will not be rehabilitated and that they will recidivate. The long period of time involved in adult court processing further undercuts the potential deterrent effects of waiver. Finally, critics emphasize the racially discriminatory implications of waiver, as indicated by a variety of studies.
At a minimum, the evidence suggests that other options are preferable to waiver because waiver does not increase deterrence or rehabilitation, has a disproportionate impact on minority youths, and subjects juveniles to the violence of adult prisons. Still, the strong support for waiver in the state legislatures and governors' mansions suggests that it is an option that is here to stay, regardless of the critics' arguments.(139)
VI. ALTERNATIVES TO WAIVER
A. Juvenile Correctional Facilities
For those juveniles who are not waived into the adult criminal justice system, a variety of alternative dispositions are available. The most serious of these alternatives, and the most overutilized, is placement in a juvenile correctional facility.(140) Such correctional facilities bear the rhetoric of rehabilitation, having been developed in order to reform juvenile offenders. Today, however, they serve as mere prisons for juveniles.(141) Many such institutions are markedly oppressive, punitive in nature, and characterized by physical and sexual violence.(142) Moreover, as congregate care facilities, they provide mass-institutionalization, not individualized treatment. Physical confinement and abuse are substituted for education and treatment services.(143)
In 1994, the DOJ reported severe deficiencies in many juvenile correctional facilities.(144) Almost 75% of incarcerated juveniles are sent to training schools where living space, health care, security, suicide prevention, and community access are substandard.(145) Additionally, less than half of these facilities were found to provide adequate food, clothing, hygiene, living accommodations, community access, education programs, or limits on staff discretion.(146) Further, only 6% of juveniles were in facilities that conform to search authorization standards.(147)
The deficiencies of juvenile correctional facilities are aggravated by the facilities' high costs and high recidivism rates. The national average annual cost in such a facility is $29,600 per resident.(148) These costs vary from state to state, with the lowest costs in South Dakota at $17,600 per resident per year and the highest costs in Rhode Island at $78,800 per resident per year.(149) Moreover, such high costs do not produce low recidivism rates. For example, New York state spends over $70,000 annually per resident, but the state recidivism rate is between 75% and 86%.(150) These congregate facilities are thus both ineffective and inefficient.(151)
B. Traditional Alternatives
Congregate facilities, however, are not the only available alternative to waiver of juveniles to adult court. A number of programs and systems have taken alternative approaches to punishing and rehabilitating serious, violent juvenile offenders. These model reforms vary in philosophy, effectiveness, and cost, and often combine several treatment components with secure detention. Such components include academic education, behavior management training, community service, crisis education, intensive supervision, individual and group counseling, mediation, mentoring, outdoor activity, reality therapy, substance abuse treatment, and vocational treatment.(152) These program components can be found in boot camps, restitution programs, wilderness programs, small facility networks, and several other unique and promising alternatives to congregate correctional facilities.(153)
1. Boot Camp
Boot camp programs mirror the structure and discipline of military training. In line with the get tough philosophy, such programs aim to teach internal discipline and prevent future offenses by providing an intensive, rigid training camp for juvenile offenders.(154) Standing alone, boot camps actually may increase recidivism because offenders have difficulty maintaining discipline without intensive supervision.(155) Boot camps may, however, be effective when coupled with rigorous academic and other treatment programs.(156)
Restitution programs require offenders to compensate their victims. Restitution alone is not an appropriate sanction for the most serious, violent offenders, hut it often is a valuable component of treatment and punishment. The purpose of restitution is to create a restorative justice system that attempts to mitigate the victims' loss and diminish societal costs of juvenile crime, while at the same time punishing the offender.(157) Preliminary research indicates a slightly lower recidivism rate for juvenile offenders on probation who participate in restitutionary programs.(158) The potential for restitution is limited by the nature of the Crime, however, since for some crimes--especially violent ones--restitution offers no appropriate compensation.
3. Wilderness Challenges
Wilderness programs are aimed primarily at rehabilitation.(159) Such programs place juveniles in small groups and then set a series of increasingly difficult physical challenges for them.(160) The programs emphasize self-reliance, community participation, teamwork, and individual accomplishment.(161) Wilderness programs vary greatly from state to state, hut some currently focus on serious, violent, and chronic offenders.(162) These programs are difficult to compare with other alternatives because of their variety. Consequently, there is a large variation in recidivism rates, from 0% recidivism to 43% depending on the program.(163)
4. Intensive Supervision
Intensive supervision programs provide enhanced probation-type monitoring of juvenile offenders.(164) Intensive supervision was developed as an alternative treatment for juveniles to alleviate overcrowding in training schools.(165) Such programs accept the limited deterrent effect of incarceration and seek to reduce treatment costs by diverting some juveniles from confinement into intensive supervision programs.(166) These programs are an effective alternative to incarceration of certain non-violent juveniles, so long as states have the political will to divert them from correctional facilities.(167) Such programs, however, are generally not used for the most serious, violent. and chronic offenders.(168)
C. Hybrid Approaches
Several programs take a unique approach to dealing with serious, violent, and chronic offenders. Such programs combine elements of all these treatment alternatives in an attempt to find an innovative and effective method of rehabilitating juveniles. The Florida Environmental Institute's Last Chance Ranch, the DOJ Violent Juvenile Offender Program, and the Serious Violent Juvenile Offender Project all seek to provide a comprehensive strategy for rehabilitating violent juvenile offenders.
1. Florida Environmental Institute's Last Chance Ranch
The Florida Environmental Institute's Last Chance Ranch provides juveniles with an alternative to incarceration in adult facilities.(169) Juveniles who have been transferred and sentenced in the adult criminal system are given the option of participating in the program rather than serving out their sentences.(170) If participants fail to conform to program rules and requirements, they are returned to the criminal corrections system to serve out their sentences.(171) Thus, participants enter the program voluntarily and conditionally. Although its facilities are unfenced and instructors are unarmed, the Institute is considered to be secure confinement because it is located within an alligator-infested swamp more than twenty-five miles from any other community.(172)
For approximately twenty juveniles, the Institute provides residential care for an average of eighteen months followed by intensively supervised aftercare for an additional six months.(173) At an annual per-resident cost of $25,551, the program provides discipline, strict supervision, restitution, intensive academic education, and physical labor to fill community needs.(174) Citing a recidivism rate of only 33%,(175) its directors credit its success to the program s focus on community responsibility and to the individual relationships each juvenile forms with the instructors.(176)
2. Department of Justice Violent Juvenile Offender Program
The DOJ has established Violent Juvenile Offender Programs in Boston, Detroit, Memphis, and Newark.(177) The programs provide a continuum of care for violent juveniles, first placing them within a secure facility.(178) Planning for reintegration into the community begins immediately upon entering the system and remains the focus of treatment throughout.(179) After release from secure confinement, youths are placed in transitional housing, often similar to group homes, where they receive additional treatment and where their activities are carefully monitored.(180) From this setting, the youths are either reunited with their families or placed with a guardian.(181)
3. Serious Violent Juvenile Offender Project
A pilot program was recently implemented in National City, California.(182) The Serious Violent Juvenile Offender Project began on January 1, 1995, and is designed to reduce juvenile crime by targeting a core group of the most troubled offenders.(183) During its three year trial period, the program will monitor fifty youths, aged fifteen to seventeen, in a tightly supervised alternative approach to incarceration.(184) Each youth is assigned a probation officer and a counselor who provide access to an array of services, including conflict mediation, self-esteem therapy, and job training.(185) In return, participants are expected to attend classes, maintain journals, and refrain from delinquent behavior.(186)
4. Systemic Alternatives: Small Facility Networks
Systemic alternatives to congregate juvenile correctional institutions have been implemented with success in Massachusetts, Utah, and Missouri.(187) Training schools have been replaced by networks of small, secure facilities linked to a continuum of community-based programs.(1889) These small facility networks provide treatment programs within a setting of secure confinement, thus balancing rehabilitation and punishment.
Missouri completely restructured its case management system so that it now provides for unified assessment, treatment, planning, coordination and accessing of services, monitoring, and evaluation in each case.(189) In addition to intensive case monitoring, the system provides day treatment programs, family therapy, short-term residential programs, group homes, community learning centers, and intensive aftercare services.
Pennsylvania and Massachusetts also have implemented small facility networks.(190) Both states now incarcerate juveniles in small, secure facilities of no more than fifteen beds and with a one-to-one staff-inmate ratio.(191) These facilities are complemented by a range of community-based treatment programs, similar to those in Missouri, that serve juveniles not deemed in need of secure confinement.(192) Research indicates that these community-based programs are a viable alternative to large congregate facilities, especially when accompanied by careful screening of participants and secure confinement for those few youths in need of incapacitation.(193) By using small facility networks, Massachusetts has attained the lowest juvenile incarceration rate in the United States.(194) Researchers estimate that Massachusetts saves over $11 million annually by using small facility networks.(195) Moreover, these savings have been accompanied by lower recidivism rates: 23% for Massachusetts small facilities as compared to 62% for California congregate institutions.(196)
While large juvenile correctional facilities are focused foremost on punishment and incapacitation, all of these alternative programs retain rehabilitation and deterrence as their primary focus. Moreover, while individual programs like the Florida Environmental Institute can be effective, the greatest successes in lowering recidivism rates have come from systemic, structural changes like those in Massachusetts and Missouri. None of these innovations lack punitive elements. Juveniles are generally removed from the community or at least monitored so as to substantially reduce their freedom. In these programs, the youths are required to participate in various treatment and training activities and are sanctioned for their failure to conform to program rules and requirements. Such programs successfully blend rehabilitation and punishment to reduce recidivism and, thus, juvenile crime.
VII. Reform: Proposals and Solutions
Some of the programs described above represent the most promising approaches for the treatment and punishment of serious and chronic violent juvenile offenders.(197) All have certain elements in common, which practitioners and researchers acknowledge as the necessary elements of a system that works.
These programs as isolated services, however, will do little to reduce crime. Isolated, they often reach juveniles too late, when they already have become seriously dangerous individuals. Moreover, these programs do nothing to address the "pipeline" of youth who are on the brink of becoming serious delinquents, but have been exposed only sparingly to the juvenile justice system. The system fails to take the opportunity at the first offense to try seriously to keep juveniles from reoffending.(198) Research indicates that the window of opportunity for dealing with serious delinquency is only about five years in length--from age thirteen to age eighteen.(199) Waiting for juveniles to develop a substantial record before any intervention occurs only compounds the problems rehabilitative services face in trying to change juveniles' behavior.(200)
Because these programs in isolation do not address the development of serious offenders, it is necessary to place them in a system that offers a continuum of prevention programs, sanctions, and treatments. The DOJ and many juvenile justice officials, advocates, and researchers would prefer a system that includes comprehensive prevention programs coupled with a series of progressively more intensive treatments and graduated sanctions in an effort to prevent recidivism.(201)
A graduated system, however, can work only if there is an adequate means for categorizing juveniles in order to determine which sanction and/or treatment is most appropriate for each offender. The DOJ also has outlined a risk assessment model that determines the likelihood of reoffense by considering a number of factors, including the severity of the current offense and the number and severity of prior offenses.(202)
There is a striking consensus among researchers about what works for serious juvenile offenders.(203) First, programs must target only the most serious offenders. Only a small proportion of youths serving in juvenile or adult detention have been convicted of violent crimes,(204) tracking the small proportion of juveniles who commit most violent crimes.(205) The most successful programs attempt to target the juveniles in this category.
In addition to targeting the most violent offenders, these programs are similar in that they include relatively small, secure facilities, where juveniles are held for a period of generally one to two years until they can be transferred to community-based programs.(206) These small facilities provide a viable alternative to large congregate care juvenile facilities like traditional training schools, which have not proven particularly effective in rehabilitating juvenile offenders.(207) Even serious offenders deserving of severe punishment have lower re-offense records in small, secure, treatment-oriented facilities.(208) Such facilities can produce decreases in recidivism of up to 70%.(209)
Other common ingredients of many successful programs include an individualized curriculum of increasingly severe physical challenges. These programs include intensive curricula of physical labor and exercise; educational, vocational, social, and other training elements; and social, family, and psychological counseling.(210) They are highly structured and intensely supervised.(211) A curriculum that includes clear tasks with early and frequent successes, reward structures, and credible training also is often found in successful programs.(212) Promising pro grams also include a relatively low staff to offender ratio and skilled, high quality, motivated staff.(213)
Some successful programs allow offenders the choice of whether or not to enter the program and which program to enter.(214) Ownership and involvement by the participants in shaping their own program also can increase the program's success.(215) Rehabilitation programs for serious chronic offenders also have been shown to be successful to the extent that they (1) provide for individual successes and the development of positive self-images; (2) facilitate the development of bonds of respect between juveniles and guards; (3) involve juveniles in conventional activities; (4) provide frequent and accurate feedback for both positive and negative behavior; (5) require delinquents to recognize and reflect on the inappropriate thought processes that led to their negative behavior; (6) create opportunities for juveniles to discuss early family experiences with appropriate staff; and (7) vary the sequence and exposure to program components to conform to the needs of each youth.(216)
Promising programs also include continuity. The programs work to develop connections with parents and maintain such connections after the juvenile has left the program.(217) Juveniles are intensely supervised after they return to the community.(218) Often these programs are community-based, so that the transition is more natural for the juvenile.(219) The programs also begin reintegration into the community, including training in life and social skills, during confinement so as to ease the transition.(220) Finally, they are family-focused, seeking to take advantage of any support system the juvenile has and to make him a part of this social system again.(221)
The DOJ's model "aftercare" program provides such continuity based on the following five principles: (1) preparing youth for progressive responsibility and freedom in the community; (2) facilitating youth-community interaction and involvement; (3) working with both the offender and targeted community support systems to facilitate adjustment; (4) developing needed resources and community supports; and (5) monitoring and ensuring the youth's successful reintegration into the community.(222)
In addition to the above elements, this model program includes another significant element that many programs do not have: opportunity structures. The beneficial effects of these programs can be nullified if a juvenile returns to a community with little job opportunity or other chance for self-sufficiency.(223) One 1993 study demonstrated that by late adolescence, employment is a crucial factor in a juvenile's development and a key predictor of her later adjustment.(224)
Again, knowing "what works" in terms of individual programs is only half the battle. For a juvenile justice system to be effective, it needs to combine personal accountability for all delinquents with increasingly intensive treatment and incrementally more severe penalties.(225) For a juvenile justice system to be effective, then, it must be based on graduated sanctions.
Graduated sanctions make juveniles accountable for their actions, beginning with their first interaction with the juvenile justice system. Treatment and sanctions increase in severity from immediate intervention, to intermediate sanctions, to secure corrections facilities, as the seriousness of offense and chronicity of the offender's behavior increases.(226) Each of these sanctions is integrated with the others to provide a continuum of increasing personal responsibility, punishment, and rehabilitative treatment.(227) The purpose of these graduated sanctions is to stop the juvenile's criminal behavior at an early stage, when it is relatively minor, rather than waiting for the juvenile to commit a very serious crime and become a dangerous individual in need of long-term incarceration.(228)
The DOJ recently released a report outlining a model graduated sanctions program aimed at reaching these goals.(229) Many researchers have advocated this approach to address the fact that many juveniles, whose initial contacts with the court system impose either no sanction or mere probation, learn at an early age that there is little personal risk involved in their behavior.(230) A graduated sanctions approach tries to rehabilitate these young people with each encounter they have with the justice system.(231) An effective system should therefore include these levels of intervention and sanction, along with secure confinements, alternatives to congregate juvenile institutions, and aftercare programs.
The initial sanction and treatment levels, known as "immediate interventions," focus on juvenile offenders who, by virtue of having committed first-time or minor offenses, less serious felony offenses, or repeat misdemeanors, can be safely dealt with within the community.(232) They have no need for secure confinement because they are not dangerous. If not dealt with quickly and consistently, however, they risk falling through the cracks in the system and spiraling downward to more serious criminal behavior. Programs such as diversion, home probation, comprehensive day treatment programs, restitution, substance abuse treatment, or other preventive youth services seek to preclude that downward spiral.(233)
"Intermediate sanctions" are programs designed for youthful offenders whose first arrest is for a serious or violent offense too serious for placement in immediate sanction programs, but not serious enough to warrant secure confinement.(234) These serious offenders may be targeted for placement in intensive supervision programs as an alternative. Such programs are highly structured and include continuously monitored and individualized placement with decreasing levels of restrictiveness. Individual components might include drug testing, psychiatric and substance abuse treatment, conflict mediation training, weekend detention, monitoring, challenging outdoor programs, independent living, educational and employment skills development, intensive family counseling, and boot camps.(235)
Secure community-based confinement is the next highest level of sanction and treatment.(236) This strategy recognizes that large juvenile facilities have effective at rehabilitating offenders, while small, secure, community-based facilities work better to provide intensive services in a structured environment.(237) Program components are like those described at the beginning of this section: small, intensive, highly structured, secure programs.
Finally, juveniles whose confinement in the community has not proven effective may need to be confined in a non-community setting such as a ranch or camp that builds on the small facility model. These programs can include, where state law permits, juveniles sentenced by criminal courts.(238)
In order for a graduated sanctions approach to work well, officials must assess which program is best suited to the individual offender.(239) Very few communities have effective risk assessment tools to analyze individual offenders by consistent and objective criteria.(240) Instead, risk assessment has been informal, highly discretionary, and performed by individuals with different philosophies, experience, and criteria.(241) Predictive tools often work only for predicting aggregate delinquency outcomes, rather than individual outcomes.(242)
In part because the system lacks good predictive tools for assessing which juveniles are the most dangerous, a substantial majority of juveniles in secure juvenile detention were found guilty of property as opposed to violent crimes.(243) The DOJ reports, however, that juvenile courts are increasingly formalizing their classification systems.(244)
States not only overcompensate for poor risk assessment tools by incarcerating youths who do not warrant incarceration, but sometimes they fail to incarcerate those juveniles who should be jailed. For example, a study of Oklahoma's assessment system determined that 2% of community-supervised juveniles were assigned to intensive supervision and 73% were assigned to low level supervision. Formalized risk assessments, however, indicated that 27% of the youths were actually high risk and should have received intensive supervision, whereas only 29% belonged in low risk supervision programs.(245) Even though few jurisdictions utilize effective risk assessment tools, there is some evidence that proper and effective tools can be constructed. For example, one researcher developed a scale of seven factors that proved to be 95% accurate in predicting which youths would become serious juvenile offenders.(246)
Moreover, accurate risk assessment reduces costs. One study examined a South Carolina intermediate approach that places youths who have previous arrests and incarcerations--including previous arrests for violent crimes such as manslaughter--into a small, non-secure community-based program with intensive counseling and care.(247) As a result of careful risk assessment, the youths in the program were subject to half as many subsequent arrests as their counterparts who were instead placed on probation or in institutions.(248) In addition, the experimental program cost only $2,800 per youth found guilty of these crimes in South Carolina, as opposed to the average $16,000 for usual institutionalization for youths.(249)
Another study examined youth residential facilities in fourteen states and estimated, based on a risk assessment tool, whether the juveniles housed there indeed needed to be incarcerated. Researchers found that 31% of juveniles could be safely placed in less secure facilities, with no increased risk to public safety and better chances of appropriate rehabilitative treatment.(250) With a cost of between $35,000 and $60,000 per incarcerated youth in a secure facility, more use of less secure facilities would represent a significant savings.(251)
A successful program of graduated sanctions aimed at curtailing serious and violent juvenile criminals must include adequate risk assessment measures. The use of proper risk assessment protects the public safety and ensures that juveniles receive appropriate treatment.
In addition, these measures are crucial for any serious attempt to both reform the waiver process and implement graduated sanctions. Numerous studies have indicated that non-violent and less serious offenders are waived to criminal court for a number of reasons not directly related to options in the juvenile system. Such waiver is only necessary so long as there are not sufficient resources at the juvenile level.(252) Theoretically, a fully reformed punishment and treatment system would eliminate the need for waiver because the juvenile system would have a secure facility appropriate for any offender. Due to the political popularity of waiver, waiver is not likely to be eliminated entirely. Nevertheless, so long as waiver is commonly used, it is critical that it be correctly targeted at only the youth who cannot be treated within the juvenile system.
Use of appropriate graduated sanctions, including a continuum of programs up to small, secure facilities, should reduce juvenile correctional costs. First, it will reduce the need for high-cost beds in large congregate training schools.(253) Even if the same number of youths are placed in small community-based programs as would have been placed in large congregate facilities, funds will be saved because community-based programs often cost significantly less than their traditional counterparts.(254) Second, such a system will save funds by reducing the number of juveniles placed in secure facilities--whether large, congregate facilities or small secure facilities. Many juveniles who are too dangerous to be left to probation programs, yet not dangerous enough to be placed in secure facilities, currently are nevertheless placed in secure facilities because of a dearth of other options.
It must be emphasized, however, that graduated sanctions will be ineffective if their implementation is not accompanied by adequate risk assessment tools. Risk assessment serves as the foundation for determining how to apply the appropriate level of both sanctions and treatment in a graduated system.
VIII. Political Reality: Is Reform Possible?
Over the past seventeen years, but most intensely in the past few years, state and federal governments have toughened their systems for handling juvenile offenders. Legislative changes increasingly have focused on facilitating the removal of juveniles from juvenile court to adult criminal court and mandating stricter sentences for juveniles. Underlying these changes is a more fearful public that appears to believe that rehabilitative programs do not work on serious, chronic, and violent juveniles, and that it is necessary to lock up juvenile offenders for as long as possible in order to secure the public safety.(255) Ironically, policy makers' reaction to the public's fears has been to embrace a strategy proven to fail. All three types of juvenile waiver--judicial, prosecutorial, and legislative--have significant drawbacks that outweigh the beneficial goals they are designed to achieve.
The alternative "tough sanctions" to waiver are not much better. The most common of these alternatives is the large congregate facility, which fails to provide the individualized treatment needed to rehabilitate juveniles. Large facilities are not only ineffective, but often feature substandard health care and living conditions. Additionally, such large facilities are among the most costly approaches to serious, violent juvenile crime. Despite the research evidence that none of the "tough" measures are effective in deterring crime or reducing recidivism, however, legislatures continue to enact these and similar measures, and continue to increase funding for prisons or other congregate facilities. Many elected lawmakers believe they must continually appear tougher on crime than their political opponents.
For decades, crime has been a political issue of consequence in elections. Even candidates in the most liberal districts nationwide try to avoid being tagged as "soft" on crime. In moderate or conservative voting districts, being termed "soft" on crime by an opponent can mean defeat.(256) The role of Willie Horton in Governor Michael Dukakis' loss to President George Bush in 1988 is a prime example.(257) In another case of crime used for political leverage, late night sports leagues such as the "Midnight Basketball" program, once considered effective and enjoying enthusiastic support among law enforcement officials, became the butt of jokes among political commentators. Late night sports programs soon became a flag waived by Republicans to point to the alleged "softness" of Democrats during the debate over the enactment of the 1994 Violent Crime Control Act.(258)
Because Americans rank crime among their top concerns, a need to appear "tough" on crime drives the current debate on juvenile justice and moves public policies toward a more punitive approach to juvenile corrections. A recent survey of state initiatives revealed that, in the last two years, twenty-seven states have expanded the use of judicial or prosecutorial waiver, twenty-one states have expanded legislative waiver, and twenty-two states have toughened sentencing of violent juvenile offenders.(259) Despite the drawbacks of waiver, and because of the ease with which legislatures appear to be taking tough steps against juvenile crime by enacting these types of changes, these trends seem permanent.
It may be possible, however, to minimize the drawbacks and enhance the effectiveness of these reforms with some modifications. Because the discretionary nature of the waiver system is the root of many of its problems, the imposition of clear, functional, and mandatory waiver guidelines could improve the system. Given that many believe that judges--at least juvenile court judges--are too lenient with juveniles, the enactment of waiver guidelines can be promoted as a "get tough" measure, even when, in reality, the guidelines will make waiver more targeted and effective.
To be most effective, guidelines should suggest waiver in situations where a juvenile has exhausted all treatment options within a juvenile system, and is violent and thus requires secure confinement for some period. Waiver should be a last resort.(260) In addition, to ensure that waiver does indeed target only the worst cases, legislatures could improve current systems by mandating thorough diagnostic assessments for juveniles to assess both risk and amenability to treatment in a juvenile facility.(261)
Finally, many non-violent juvenile offenders get waived to adult court because juvenile facilities are overcrowded. To ensure that waiver is used appropriately and effectively, legislators need to adequately fund juvenile systems. Given the high cost of incarceration, a state's shift to investment in non-secure, as well as small, secure juvenile facilities, could save it much needed financial resources and result in significant savings.(262)
Determining how to improve the programs and facilities to which juveniles are sentenced is not as difficult as one might expect. There is a striking consensus among researchers, jurists, and law enforcement officials about what kinds of programs are proven to reduce recidivism and to rehabilitate juveniles. All agree that large congregate facilities are ineffective at reducing crime or reoffense rates; small, secure facilities are most effective with dangerous juveniles who are a danger to society; and non-incarceration programs based in the community are most effective with juveniles who do not threaten public safety.
Researchers, jurists, and law enforcement officials also are in agreement that an effective system should include graduated sanctions. Such systems feature individualized treatments and sanctions, for they include intermediate steps between probation and incarceration. They can work well, however, only in conjunction with risk assessment tools that identify the right treatment and/or sanction for the juvenile, as well as his risk to society. The juvenile justice community also is united in its insistence that aftercare or community re-entry programs are essential to the successful reduction of recidivism.
Despite the consensus about what works, however, there is no consensus in the public debate around these ideas. Americans appear to have malleable notions about juvenile crime, believing on the one hand that violent criminals should be punished, and on the other that juveniles should be treated and rehabilitated.(263) Although 73% of the public may favor waiver to adult court for serious, violent, and chronic juvenile offenders, only 10% believe that incarceration is appropriate for first time offenders.(264) The public, however, is often uninformed or misinformed about the effectiveness of the "get tough" policies it supports, presuming that whatever satisfies its sense of outrage will produce positive results, even though data may indicate a contrary result.(265) Though delinquent behavior is most often a result of community, family, and social disintegration, the public generally addresses juvenile crime problems in isolation, failing to consider the relationship between individual delinquency and broader social problems.(266)
Furthermore, elected leaders have formed no consensus around these ideas. A recent DOJ conference aimed at discussing and promoting the kind of sensible approach described above drew almost entirely from the academic and criminal justice community even though elected officials and their staffs were invited. This prompted one organizer to report that all speakers were "preaching to the converted."(267) The lack of consensus around these ideas by elected officials is evident in the overwhelming proportion of legislative changes that enact the kinds of correctional tools proven by researchers not to work. To accomplish the goal of reforming the system to reflect the sensible, proven approaches favored by the juvenile justice community requires first an understanding of the dynamic that drives the enactment of "get tough" laws, and of the dynamic at play in some of the states that have accomplished meaningful reform.
Periodic increases in violent juvenile crime or media attention to gang- or gun-related violence can create a surge of public support for tough reform. Sometimes, a single heinous incident can move juvenile justice systems into a significantly more punitive mode, regardless of whether that incident accurately reflects trends in juvenile crime or the system's ability to deal with violent juveniles. An examination of the political atmosphere surrounding the passage of the New York Juvenile Offender Law, which established legislative waiver in New York, demonstrates how, in the proper climate, a single vicious criminal act committed by one juvenile can shift a system to a more punitive approach.(268)
Over an eight day period in 1978, Willie Bosket, then age fifteen, shot in the head and killed two subway passengers in separate late-night robberies.(269) After his arrest, Bosket boasted that the maximum penalty he could receive would be five years in a youth facility.(270) Moreover, he had been released from such a facility just six months before, after serving time for a robbery charge.(271) The public was outraged.(272)
The public did not care that Willie Bosket had slipped through the cracks of substantial reform efforts taking place within New York's juvenile justice system; it wanted a tough, immediate response.(273) New York legislators had resisted passing a legislative waiver statute for some time, but in response to the Bosket case and in the midst of a difficult reelection, Governor Hugh Carey pushed legislation that would incapacitate violent offenders like Willie Bosket.(274) The legislature quickly amended the 1976 Juvenile Justice Reform Act with the Juvenile Offender Law, providing for automatic waiver for juveniles as young as thirteen for a wide range of violent offenses.(275)
The results of this law are disheartening. Three separate evaluations have concluded that New York's legislative waiver fails to provide more protection to the public or to juveniles, or more rehabilitated juveniles.(276) New York has the second-highest violent juvenile crime rate in the country, trailing only Florida, at a rate of 1,122 violent crimes per 100,000 citizens.(277) At a time when New York's Division for Youth was moving away from congregate facilities towards an individualized system of confinement and disposition,(278) Willie Bosket's crime prompted a backlash resulting in a harshly punitive law that has proven ineffective in meeting the goal of decreasing juvenile crime.
Given the right conditions, public response to a single incident or to rising juvenile crime in general can quickly swing the pendulum of reform toward punitive measures. How then can the balanced system that incorporates both rehabilitation and punishment achieve political tenability? How can the reforms agreed upon by the experts be successfully implemented despite public sentiment favoring harsher punishments? The answer to these questions may lie in the few states, such as Missouri, Massachusetts, and Utah, that have successfully retained substantially rehabilitative juvenile systems in the midst of both the general public insistence on getting tough on crime and an atmosphere poisoned by specific, horrific incidents that move public sentiment against treatment-oriented approaches.(279)
Missouri's experiences prove to be an apt example because in 1994, when most states were reforming juvenile justice systems to ease waiver of juvenile offenders to adult court, the Missouri legislature increased the Division of Youth Services treatment budget by 20%.(280) But Missouri did not always have so progressive an approach to crime. In the late 1960s, in keeping with the practice of most states, Missouri housed juvenile offenders in large, congregate institutions; a single facility held as many as 700 delinquents.(281) Seeking to improve its treatment programs, however, Missouri began to reexamine its system in the 1970s, eventually deciding to move away from congregate correctional institutions toward smaller treatment-oriented facilities.(282)
Missouri began an arduous restructuring of its juvenile justice system, scattering youthful offenders to small facilities, establishing group homes and day treatment programs, and eventually implementing a wide range of other treatment-oriented programs, from intensive supervision to family and peer therapy.(283) Having eliminated the large congregate facilities and having established these new types of treatment-oriented programs, the system provided a wide array of services. These services, however, were scattered inconsistently among facilities; the Division of Youth Services needed to coordinate these programs into a comprehensive system.(284)
In the past several years, the Missouri system has done so. It now provides small facilities for serious offenders based on a regional concept that strives to keep offenders connected to their communities.(285) These facilities seek to be as humane and homelike as possible, and contain no cells or lock-downs. Even in its secure facilities, Missouri has rid juvenile correctional institutions of most prison trappings.(286)
Moreover, most juvenile offenders are kept out of these facilities and placed in group homes, day treatment centers, or intensive supervision programs.(287) The system offers a variety of options for both non-residential and residential care, but residential care is used only when no other reasonable alternative exists. Additionally, even within the residential care facilities, short-term stays in sixty- or ninety-day "beds" help those offenders who need the additional attention that is lacking in non-residential programs, but who do not need the intense intervention of long-term stays in residential care. These shorter-term beds also help reduce the costs of the system, allowing more offenders to benefit from residential treatment.(288)
All of Missouri's programs seek to provide individualized treatment to juvenile offenders, adapting the system to fit the needs of the youth rather than pushing her to fit the system.(289) Each is placed in the least restrictive environment allowable for the shortest amount of time reasonable based on the offender's individual needs, rather than on offenses. Each is then given substantial follow-up treatment in her home community.(290) By raising its expectations for the juveniles in its care, and by placing them in the least restrictive environments, the system fosters trusting relationships between staff and offenders.(291) The system's staff members seek to act under the true doctrine of parens patriae, treating these offenders as they would their own children.(292)
Moreover, the Missouri system extends its reach beyond the youths in two ways: it works with the families of juvenile offenders, and it follows the juveniles back into the community with a job training program.(293) The importance of working with the families of offenders was repeatedly stressed by members of Missouri's Division of Youth Services, who noted that any program's effectiveness is limited by failure to look beyond the juveniles themselves to their family structure.(294) In this way, the system seeks to offer truly community-based treatment, rehabilitating both the offender and his familial support network.
Additionally, the system uses its job program as a means to create a relationship between rehabilitated offenders and the community. In the past two years, the Division of Youth Services has implemented a job program that finds work for youths upon completion of their treatment.(295) To find jobs for these youths, the Division of Youth Services contacts numerous private industry councils throughout the state, which in turn help employ youths in non-profit and other organizations.(296) The system pays the youths' wages, and the youths receive the learning benefit of job experience, as well as a financial incentive to stay out of trouble. Furthermore, the benefit of the program also extends to the community as a whole, because it is forced to look at juvenile offenders as active members of that community and to accept some of the responsibility for preventing recidivism by providing opportunities.(297) The jobs program also helps the Division of Youth Services garner public support for its programs, precisely because these youths are seen working and contributing to the community after they have been through the system's rehabilitative treatment.
The structural changes in Missouri's system have not been without cost. Since 1989, the Missouri legislature has increased funding for the Division of Youth Services from $15.57 million to $32.47 million.(298) The Division of Youth Services also has decreased the percentage of its budget devoted to administrative costs from 10% in 1989 to 7% in 1995. This allowed an increase in the percentage of funds used for treatment programs, from 86% in 1989, to 91% in 1995.(299)
Despite these increases in spending, members of the Division of Youth Services believe that their programs are saving the state money. The growth in community based treatment in Missouri arose on the heels of a one year, 30% increase in the state's commitment rate for juvenile offenders, a growth trend that the state anticipated would have continued for the foreseeable future absent a change to the system.(300) The negative results of the increased number of commitments were dramatic: the system was backlogged, there was no room in any residential facility to place newly-committed offenders, and the only additions to the system were expensive and time-costly new residential facilities.
Community-based services thus made financial sense. The services were cheaper to implement, and doing so took far less time than constructing new residential facilities.(301) Moreover, these services could serve the system for one-third to one-half the cost per youth of residential treatment. Thus, for the same expenditure, the system could accommodate many more offenders services than through residential facilities alone.(302) The Division of Youth Services could now accommodate the growing number of youths entering the system without a proportional increase in the costs.
All of these changes to Missouri's juvenile justice system have taken place within the last twenty-five years, a period in which political leaders and the public in general have increasingly pushed for tougher sanctions and less treatment for juvenile offenders. How did Missouri accomplish and maintain this reform in that environment? In a word, marketing.
In Missouri, the key to reform was in getting judges and legislators to support treatment measures that had been proven effective. During his first year as Director of Youth Services in Missouri, Mark Steward traveled around the state talking to judges and legislators about what types of programs were needed to improve the state's juvenile justice system.(303) He then took key judges and legislators to Utah and Massachusetts to see model programs first-hand.(304)
Having won the support of these key figures, Steward held a statewide conference on juvenile justice, wherein those who had visited Utah and Massachusetts informed their peers about the successes of their treatment-oriented reforms. Soon, the judges and legislators supported their use in Missouri.(305) Even the state's most conservative judge, Steve Limbaugh (first cousin to conservative commentator Rush Limbaugh), promoted treatment programs, thereby garnering public support for such measures. If Limbaugh supported them, the reasoning went, then these measures had to be tough.(306)
Having garnered political support for the system, Steward still had to sell juvenile-offender treatment to the public. According to Steward, he had to explain it to "the ordinary citizen," outlining the program in lay terms by clarifying the benefits to public safety of treating offenders.(307) Realizing that a single juvenile expert on his own was not the most effective salesman, he enlisted sheriffs and prosecutors to spread the word. Moreover, the public sales pitch required couching the treatment programs in punitive rhetoric; for example, saying that treatment programs "teach responsibility."(308)
Public support for progressive reform may be fleeting, however, as the experience in New York has demonstrated. In fact, an incident at Missouri's Lake of the Ozarks in December of 1994 almost became Mark Steward's Willie Bosket. A thirteen-year-old and a seventeen-year-old stole a racing boat, crashed into a resort lodge, and then fatally shot two hotel security guards.(309) The public was outraged by the incident, but Steward and others managed to quell the public thirst for vengeance and maintain support for the state's system by turning the message around in the public debate.(310) As Steward explained,
One thing like that can undo what you have spent years doing. So you take
the message and turn it around by saying, `if you're going to kill the kid
or put him in prison for life, that's one thing; but if you're not, then you
have to ask yourself what you want him to be like when he gets out? Do you
want him raised by inmates for fifteen to twenty-five years, or do you want
to give him treatment?'(311)
By educating the public and using effective law enforcement spokespeople, Steward was able to preempt a reactionary backlash against his program. He was fortunate that, unlike the New York scenario, he did not have a divisive political climate to make his task impossible.
Fundamentally, the Missouri system is a compromise. For example, the state still permits judicial waiver of juveniles to adult court, and it recently passed a new juvenile justice law that requires the Division of Youth Services to coordinate control of juveniles convicted in adult court with adult corrections.(312) But the new bill also increased funding for treatment programs, and the system still provides the vast majority of the juveniles under its direction with an extensive array of treatment services.(313) Mark Steward does not expect miracles, and he believes that sometimes it is necessary to give up on one point, such as limiting waiver, in order to win another, such as more funding for treatment programs that work.(314)
The Missouri system thus demands that the community look at the problem of juvenile offenders from a broader perspective, not just out of a fearful reaction to violent crime. By reaching into the community with its programs and making its successes visible, the system is requiring that the public look at the underlying causes of juvenile violent crime. The system exposes the social welfare problems--the loss of family and opportunity structures--that lie at the heart of the issue, and pushes the community to accept responsibility for repairing these losses by creating new opportunities, such as jobs, for past offenders.
As the Missouri case illustrates, the possibility of reforming juvenile justice ultimately boils down to political salesmanship. The public needs juvenile justice policies to make sense within its own philosophical beliefs, but it generally has little information about the effectiveness of the policies it espouses.(315) It is not intuitively obvious that getting tougher, handing out longer sentences, and refusing to "coddle" violent juveniles with treatment are strategies destined to fail. Given the outrage that follows the most publicized violent juvenile crimes, it seems perfectly logical to much of the public that tougher justice is needed.
Convincing citizens of the reality of juvenile justice is a formidable challenge in this context, but it is precisely what Mark Steward did, and what some of his peers have tried to do as well.(316) Among them, they spell out a few key steps needed to build and maintain public support for effective strategies.
IX. POLITICAL STRATEGY FOR REFORM
First, to sell the public on the idea, it is important to mobilize the law enforcement community. Like Steward, Scott Harshbarger, Massachusetts' Attorney General, maintained his state's positive juvenile justice climate by leading a task force of criminal justice officials who examined the state's juvenile system and reaffirmed its effectiveness.(317) This task force's work is largely credited with providing the ammunition to resist some of Governor William Weld's latest "get tough" proposals. The public respects the opinions of police officers and prosecutors on these issues because they are associated with "toughness." Ironically, many also are among the biggest supporters of the type of system advocated by this Note.(318)
The second element of a successful political strategy aimed at achieving sensible reforms is aggressive education of the public. Such a campaign involves outreach by prosecutors, police officers, and judges, who explain to the public exactly which programs really make them safer, and how. It also includes creative packaging of progressive as well as seemingly "tough" reforms. For example, Colorado Governor Roy Romer achieved success by packaging tough and punitive juvenile gun laws with an overhaul of Colorado's juvenile justice system involving significant investments in prevention programs.(319)
Boot camps offer an interesting opportunity for selling the public on progressive programs that work. Although boot camps alone are not effective at reducing recidivism, they can be effective when they incorporate components of rehabilitative treatment, such as community and family therapy, intensive education, and aftercare. Such a program would look much like the Last Chance Ranch in Florida, which is viewed by many as a paradigm of success in rehabilitation and recidivism reduction.(320) Boot camps, unlike many juvenile treatment programs, enjoy substantial support among the public.(321) They are intensive, disciplined, and rigorous, gratifying the conservative desire for personal accountability.
Likewise, the graduated sanctions approach to juvenile corrections also can be packaged as a "tough" measure. Among the reasons for the success of this approach is the elimination of the stark choice confronting judges who must either incarcerate a youth or sentence him or her to probation if there are no intermediate alternatives. As discussed above, intermediate sanctions mean that more juveniles will be held accountable for their behavior, and more juveniles will receive some sort of sanction between dismissal and probation. A system that holds more juveniles accountable fits easily into a "get tough" strategy, while also meshing with the ideal, proven strategy recommended in this Note.
Third, it is even more critical to educate the public when there is a particularly heinous crime in the media's spotlight than in "normal" times. Often the public's outrage is channeled into unproductive reforms. For example, the Polly Klaas case in California, which spawned "three strikes and you're out" mandatory sentencing laws across the nation, did not involve weak or discretionary sentencing.(322) Rather, Klaas's murderer received a sixteen year sentence for kidnapping, but was released after only serving eight years because of prison overcrowding.(323)
The three strikes law threatens to compound the overcrowding problem in prisons nationwide, thereby increasing the risk that serious offenders short of their third strike may be let free, and those offenders who have three non-violent felonies will fill prison spaces.(324) Thus, the three strikes law is a poor attempt to keep violent criminals off the streets because it treats violent and non-violent offenders with the same sentence and threatens to overburden prisons beyond control.(325)
Although it is an ambitious goal to control the debate about these types of horrible crimes, a successful strategy for building and maintaining an effective system requires a strong effort from juvenile justice officials, police, prosecutors, and others who support successful systems. When horrible crimes happen, these individuals need to discuss all the relevant factors regarding why it happened, whether anything truly could have prevented it, and why the criminal justice system on the whole is still effective.
Fourth, the ultimate political lesson learned from the Missouri example is that compromise is necessary to a successful strategy. Mr. Steward was careful not to let the best be the enemy of the good, giving in to some less effective "get tough" strategies such as expanded waiver in order to expand funding for the programs that do work.
Finally, a successful system must demand that the public look at the deeper social issues which lead to crime and acknowledge that the juvenile justice system is itself only a safety valve to deal with the greater and more complicated social welfare problems confronting our communities. By extending its reach into the community through jobs programs and family therapy, the Missouri system has sought to do just that. Moreover, it has demanded that the public remember that juvenile offenders are themselves victims of these social welfare problems. It has forced the community to reinstill the rehabilitative balance into the system and accept the responsibility for the causes of juvenile crime.
Juvenile crime grows out of weakened family and community structures, and other destructive environmental factors such as poverty, inadequate housing and education, lack of work opportunities, drug addiction, alcoholism, and domestic violence. To eradicate such crime requires addressing all of these social ills, not just detention of juvenile offenders.
The juvenile justice system generally meets young people relatively late in the process, when they have already committed crimes and when some of them are already violent and dangerous individuals. Rather than a preventive measure, the juvenile justice system is usually an escape hatch through which American communities try in varying degrees to rehabilitate, punish, and incapacitate offenders.
Historically, the juvenile justice system was developed to be rehabilitative in nature. It aimed to "save" youths who had succumbed to poor environments by correcting the deficiencies that led them to commit crimes. Over many years, the system lost its individualized character and instead began to place juveniles in large congregate care facilities with little individually tailored attention. As crime in general and juvenile crime in particular became a larger focus of public attention in recent decades, legislatures and law enforcement administrators have tried to systemically shift juvenile justice from an individualized, rehabilitative system toward a more punitive, less treatment-oriented system.
Among the innovations passed by legislatures to make the criminal justice system treat juveniles more seriously is increased mandatory or discretionary waiver of juveniles to adult criminal courts. Waiver has proven to be less than a satisfactory solution to the juvenile crime problem. A variety of alternatives to waiver exist, some of which are substantially more successful at reducing recidivism than waiver. These alternatives range from large congregate care facilities, which are generally costly and relatively unsuccessful, to boot camps, wilderness programs, and hybrid programs that involve physical challenges with intensive counseling, job training, and programs aimed at reintegrating juveniles into their communities. The most successful of these hybrid programs also provide aftercare programs to monitor and work with the juvenile after she is reintegrated into the community. Many involve job or other opportunity programs as part of the reintegration.
There is significant consensus about what is most effective among these non-waiver options. Programs must target only the most serious offenders. They must include relatively small, secure facilities, where juveniles are held before being transferred to community-based facilities. They also include individualized programs to train, challenge, and counsel youths, as well as transition programs and jobs programs that help the juvenile reintegrate into the community.
But as successful as these programs are, in isolation they cannot significantly impact juvenile crime because they do not address the "pipeline" of youth who are on the brink of becoming serious offenders, but are exposed only sparingly to the juvenile justice system before becoming truly dangerous. An effective comprehensive system must include such elements as graduated sanctions, rehabilitative treatments, and prevention programs that fit juveniles at every stage even before they are seriously violent and dangerous. When a young person first comes into contact with the juvenile justice system, he needs to be carefully evaluated to determine what type of sanction is appropriate. As the juvenile has increasing interactions with the juvenile system, sanctions must increase with the severity of the offense and the chronicity of the offender's behavior. With effective tools for measuring the risk a particular juvenile poses, coupled with graduated sanctions, communities can both save funds and reduce recidivism among treated juveniles.
Despite the broad consensus about the kinds of factors that make any juvenile justice system effective, most communities do not utilize the necessary elements. In part, this result is dictated by public demand for politicians to "get tough" on juvenile crime. Nevertheless, some communities have been able to achieve effective reforms in a political environment charged with a "get tough" mentality. The Missouri model indicates that well tailored community and media strategies can sell needed reform to a punishment-oriented public.
While achieving progressive reform of the juvenile justice system is intrinsically political, the value of progressive reform is not. Progressive proposals are neither soft, nor tough: they are smart. They achieve the results the public demands, by lowering recidivism and reducing juvenile violent crime, even if they do not meet the demands of public opinion.
(1.) Barry Krisberg, Youth Crime Prevention: A Research Agenda, in Juvenile Justice and Public Policy 1, 15-16 (Ire M. Schwartz ed., 1992) (citing ALDIN MILLER & LLOYD OHLIN, Delinquency and the Community 11 (1985)).
(2.) The Department of Justice has adopted the following definitions of serious, chronic, and violent juvenile offenders: 1) serious offenders are those adjudicated delinquent on any felony charge; 2) violent offenders are those adjudicated delinquent on felony charges of homicide, rape or other sex offense, mayhem, aggravated assault, kidnapping, or robbery; and 3) chronic offenders are those adjudicated delinquent on three or more offenses. JOHN WILSON et al., U.S. Dep't of Justice, A Comprehensive Strategy for Serious, Violent, and Chronic Juvenile Offenders: Program Summary 1 (1994).
(3.) Historically, prisons and juvenile correctional facilities have housed a disproportionate number of poor, immigrant, and racial and ethnic minority persons. Trends in Racial Disproportionality in Juvenile Court Processing: 1985-1989, 39 Crime & Delinq. 29 (1993). Additionally, the Office of Juvenile Justice and Delinquency Prevention's list of behavioral factors that contribute to serious, violent, and chronic juvenile crime reflects the influence of social welfare problems on juvenile crime generally These factors are: 1) delinquent peer groups; 2) high-crime neighborhoods; 3) lack of consistent discipline; 4) poor school performance; 5) weak family attachments; and 6) physical or sexual abuse. WILSON et al., supra note 2, at 14. For additional information on the relationship between juvenile crime and broader social welfare issues, see THOMAS J. BERNARD, The Cycle of Juvenile Justice 186-87 (1992); Michael B. Greene, Chronic Exposure to Violence and Poverty': Interventions that Work For Youth, 39 Crime & Delinq. 106 (1993).
(4.) BERNARD, supra note 3, at 186-87; IRA M. SCHWARTZ, (In)Justice for Juveniles: Rethinking the Best Interests of the Child 177-78 (1989). While many, if not most, children who endure these conditions do not become involved in criminal activity, a number of studies have shown that children who do commit comes often come from environments where such problems are pervasive. Id. Extensive research has been devoted to determining why some children turn to violence under these conditions while others do not. See, e.g., CHARLES H. SHIREMAN & FREDERIC G. REAMER, Rehabilitating Juvenile Justice 28-30 (1986); U.S. Dep't of Justice, Guide for Implementing the Comprehensive Strategy for Serious, Violent, and Chronic Juvenile Offenders 2-6 (James C. Howell ed., 1995) [hereinafter guide for implementing].
(5.) Guide for Implementing, supra note 4, at 2-6; SHIREMAN & REAMER, supra note 4, at 2.
(6.) MARK H. MOORE et al., 1 From Children to Citizens: The Mandate for Juvenile Justice 1-22 (1987).
(7.) Id. at9-14.
(9.) BERNARD, supra note 3, at 21-35. Repeated shifts in the balance between punishment and rehabilitation create a cyclical pattern of public debate and legislative response to juvenile justice reform. Id. at 3. This pattern contains the following four phases, each of which starts with the presumption that juvenile crime is thought to be unusually high: (1) there are many harsh treatments and few lenient treatments so officials are forced to choose between harshly punishing juveniles and doing nothing at all; (2) juvenile crime is blamed on this "forced choice;" that is, both harsh punishments and doing nothing at all are thought to increase crime; (3) a major reform introduces lenient treatments for juvenile offenders, creating a middle ground between harshly punishing and doing nothing at all; and (4) juvenile crime is blamed on lenient treatments, so harsh punishments gradually expand and lenient treatments gradually contract. Id.
(10.) See, e.g., Doug Fischer, Americans Crack Down on Young Offenders. Ottawa Citizen, Dec. 10, 1994, at B2; Christopher Johns, Little is Just in Juvenile Justice, Ariz. Republic, Nov. 6, 1994, at E3.
(11.) See, e.g., Diane Hirth, State Ready to Crack Down on Juvenile Offenders, Fort Lauderdale Sun Sentinel, Dec. 28. 1994, at 7A.
(12.) BERNARD, supra note 3, at 163-64; see Patricia Edmonds & Sam V. Meddis, Crime & Punishment: Is Juvenile Justice System Creating Monsters? Public Angry Over Level of Violence, USA Today, Sept. 28, 1994, at A1 (examining conflict between imposing harsher punishments on youth offenders and improving rehabilitation efforts); see also SHIREMAN & REAMER, supra note 4, at 51 (discussing the negative results of increasing punishment). Additionally, punitive policies tend to result in a disproportionate number of minority arrests. African-American males are currently over represented in juvenile facilities by 180% and Latinos by 86%. SCHWARTZ, supra note 4. at 47.
(13.) Generally experts agree that there are a small number of habitual juvenile offenders who will not respond at all to treatment and thus need to be permanently incarcerated. See, e.g., Martha E. Bellinger, Waiving Goodbye to Waiver for Serious Juvenile Offenders: A Proposal to Revamp California s Fitness Statute, 11 J. Juv. L. 1 (1990). By providing a comprehensive system resources would be concentrated on these recidivists and not on lesser offenders who do not need the same punitive measures. See generally GUIDE FOR IMPLEMENTING supra note 4, at 7-15; Richard A. Mendel Prevention or Pork: A Hard-Headed Look at Youth-Oriented Anti-Crime Programs, Am. Youth Pol'y F. (1995).
(14.) Guide for Implementing supra note 4, at 7-15.
(15.) The requirement of mitigated punishment for juveniles appears in the Koran the Talmud and the Code of Hammurabi as well as in early English common Law. BERNARD supra note 3, at 28-29.
(16.) Id. at 42-49.
(17.) The Progressive Era. a period of liberal reform, lasted from 1890 until 1920. WILLIAM E. LEUCHTENBURG, The Perils of Prosperity: 1914-1932, at 120 (1958); MOORE et al., supra note 6, at 39.
(18.) BERNARD, supra note 3, at 42-49.
(19.) MOORE et al., supra note 6, at 39-42.
(20.) SHIREMAN & REAMER, supra note 4, at 4-8.
(21.) Parents patriae traditionally refers to the role of the state as sovereign and guardian of people under legal disability, including minors. Barron's Law Dictionary 341 (3d ed. 1991).
(22.) SHIREMAN & REAMER, supra note 4, at 4-8.
(23.) MOORE et al., supra note 6, at 41-42; SHIREMAN & REAMER, supra note 4, at 7-9; Royce S. Buckingham, The Erosion of Juvenile Court Judge Discretion in the Transfer Decision Nationwide and in Oregon, 29 WILLAMETTE L. Rev. 689 (1993). The court attempted to act more as a welfare agency than as an adjudicative body; as such, an expert judge, social workers, and probation officers made individualized decisions for each youth. Martin Forst & Martha-Elin Blomquist, Cracking Down on Juveniles: The Changing Ideology Youth Corrections, 5 Notre Dame J.L. ETHICS & PUB. POL'Y 323 (1991). In so doing, these courts rejected the procedural formalities of adult courts as inappropriate for juvenile court, where the state was trying to act in the youth's interests rather than its own. Id. Flexible dispositions, lack of attorneys, lack of juries, broad judicial discretion, confidential hearings, and sealed records characterized juvenile courts, all attempting to foster the court's place as parent to the youth. Id. Even the language of the court distinguished the juvenile justice system from the adult criminal system. For example, juveniles were "adjudicated delinquent," not "found guilty," and were then sent to training schools, not prisons. SHIREMAN & REAMER, supra note 4, at 6-9. All of these qualities were intended to funkier the primarily rehabilitative goals of the new juvenile justice system.
(24.) Forst & Blomquist. supra note 23.
(29.) JEFFERY FAGAN et al., URSA Institute, Separating the Men From the Boys: The Criminalization of Youth Violence through Judicial Waiver 12 (1987).
(30.) 387 U.S. 1 (1967).
(31.) Id. at 4-24.
(32.) FAGAN et al., supra note 29, at 12.
(33.) BERNARD, supra note 3, at 116- 18.
(34.) See Katherine S. Teilmann. New Widening and Relabeling: Some Consequences of De-Institutionalization, in Youth Crime, Social Control, and Prevention: Theoretical Perspectives and Policy Implications 53, 55-59 (M. Brusten et al. eds., 1986) (discussing effects of labeling theory on increasing punitive nature of juvenile justice system); Carol A.B. warren, New Trends in the Social Control of Juveniles: Transinstitutionalism and Private Profit, in YOUTH CRIME, supra, at 33 (discussing impact of In re Gault on the nature of the juvenile justice system); Barbara M. Farrell, Comment, Pennsylvania s Treatment of Children who Commit Murder: Criminal Punishment has not Replaced Parents Patriae, 98 DICK. L. REV. 739, 751 (1994) (same); see also Barry C. Feld, Criminalizing the Juvenile Court: A Research Agenda for the 90s, in Juvenile Justice and Public Policy 59 (Ire M. Schwartz ed., 1992) [hereinafter Feld, Criminalizing] (discussing shift in balance away from rehabilitation); Carole Barnes & Randal Franz, Questionably Adult: Determinants and Effects of the Juvenile Waiver Decisions, 6 Just. Q. 117 (1989) (same).
(35.) Warren, supra note 34. Labeling theory contended that contact with the juvenile justice system labels youths delinquent. These youths then continue to behave deviantly to fit into their delinquent label. Id. Supporters of labeling theory argued that many juvenile offenders should be diverted from the juvenile detention system altogether. although serious, violent offenders should still be handled by formal juvenile proceedings and institutional confinement. SHIREMAN & REAMER, supra note 4, at 150. Labeling theory is particularly concerned about diverting status offenders, such as runaways, from formal processing, and its proponents successfully achieved this result when the federal government mandated the reinstitutionalization of status offenders. SCHWARTZ, supra note 4, at 4-7; Teilmann, supra note 34, at 55-59. With status offenders removed from the system, jurisdiction of the juvenile courts focused increasingly on serious, chronic, and violent offenders, necessarily increasing the system's punitive focus. SHIREMAN & REAMER, supra note 4, at 150; Feld, Criminalizing supra note 34, at 59.
(36.) For a comprehensive discussion of the changes in Massachusetts's juvenile justice system and the aftermath of those changes, see JEROME MILLER. The Last One Over the Wall (1991).
(37.) Feld, Criminalizing, supra note 34, at 59.
(38.) BERNARD, supra note 3, at 162-64; SCHWARTZ, supra note 4, at 7, 25-29; Eric L. Jensen, The Waiver of Juveniles to Criminal Court: Policy Goals, Empirical Realities, and Suggestions for Change, 31 Idaho L. Rev. 173 (1994).
(39.) SHIREMAN & REAMER, supra note 4, at 15-16.
(40.) The public backlash against rehabilitation was, in large part, based on the advent of the "nothing works" philosophy that developed out of studies of rehabilitative programs in juvenile correctional facilities that concluded that rehabilitative treatment was ineffective in reducing recidivism. SHIREMAN & REAMER, supra note 4, at 84-91; Jensen, supra note 38, at 173. In the last decade, almost one quarter of the states have redefined their juvenile code statements of purpose to reemphasize rehabilitation and youths' best interests, and instead emphasize punishment and public safety. Barry C. Feld, Juvenile (In)Justice and the Criminal Court Alternative, 39 CRIME & DELINQ. 403,409 (1993) [hereinafter Feld, Juvenile (In)Justice].].
(41.) Eric Metachick. Recommending Juvenile Offenders for Pre-trial Release, 43 Juv. & Fam. CT. J. 39 (1992). For example, after American teenager Michael Fay was sentenced to caning for vandalism, more than half of the Americans surveyed by Newsweek indicated they believed this punishment was appropriate. Laura S. Stepp, The Crackdown on Juvenile Crime: Do Stricter Laws Deter Youths?, WASH. POST, Oct. 15, 1994, at A1, A12. In a recent Gallup poll, 86% of adults surveyed favored harsher penalties for student possession of guns in schools. Id.
(42.) Barry Feld, The Juvenile Court Meets the Principle of the Offense, 78 J. Crime. L. & Criminology 471 (1987) [hereinafter Feld. Juvenile Court]; Metachick, supra note 41, at 39 (citing DONNA HAMPARIAN et al., Youth in Adult Courts (1982)); Rudman et al., Violent Youth in Adult Court: Process and Punishment, 32 Crime & Delinq. 75 (1986).
(43.) GINGER ROMERO & DAVID BROWN, Nat'l Governors Ass'n, State Progress In Addressing Youth Violence (1995). Some examples of laws passed by states in 1993 are set out as follows: Washington, D.C., required transfer of a child to adult court if it is determined to be in the interest of public welfare and protection of the public's security; Florida granted limited access to students' records without student or parent approval; Illinois allowed courts to levy any sentence on a minor tried as an adult for certain drug offenses; Indiana increased the maximum period a juvenile may be detained; Kansas made public the files of 14- and 15-year-olds who commit an act that would be a felony if committed by an adult; Louisiana required juveniles convicted of murder, rape, kidnapping, and treason to be committed to a secure facility until the age of 21; Louisiana also added attempted murder and aggravated battery to the offenses for which a juvenile could be tried as an adult; Massachusetts applied mandatory sentences to juveniles, aged 14 and older, convicted of first or second degree murder: Minnesota made possession or storage of a dangerous weapon on school property a felony; New Mexico prohibited adult courts from transferring serious youthful offenders to children's court; Oklahoma expanded the offenses for which juveniles are tried as adults; Ohio limited the number of requests for early release that may be made by a child m custody. Stepp, supra note 41, at A 12.
(44.) U.S. Dep't of Justice, Federal Bureau of Investigation November 19, 1995 press release (1995) (finding that violent crimes, including murder, forcible rape, robbery, and aggravated assault, reported to U.S. Law enforcement agencies dropped below 1.9 million incidents for first annual period since 1990).
(45.) HOWARD N. SNYDER. U.S. Dep't of Justice, Fact Sheet No. 13: Juvenile Arrests (1994). But see Nat'l Coalition of State Juvenile Justice Advisory Groups, Myths and Realities: Meeting the Challenge of Serious, Violent, and Chronic Juvenile Offenders, 1992 Annual Report [hereinafter Nat'l Coalition, Myths & Realities] (noting that arrest rates overstate rate of juvenile crime because juveniles commit crimes in groups more often than adults).
(46.) HOWARD N. SNYDER. U.S. Dep't of Justice, Fact Sheet No. 14: Juvenile Violent Crime Arrest Rates, 1972-1992 (1994) [hereinafter Snyder, Fact Sheet No. 14].
(47.) Anna R. Mahoney, "Man I'm Already Dead. `Serious Juvenile Offenders in Context, 5 NOTRE DAME J.L. ETHICS & PUB. POL'Y 443, 453 (1991).
(48.) Id. at 453-54.
(52.) See generally Guide for Implementing, supra note 4 (discussing importance of aftercare in deterring recidivism).
(53.) Eric Jensen & Linda Metsger, A Test of the Deterrent Effect of Legislative Waiver on Violent Juvenile Crime, 40 Crime & Delinq. 96, 97 (1994); Metachick, supra note 41, at 39.
(54.) Lindsay G. Arthur & Lori J. Schwartz, Certification--An Overview, 44 Juv. & FAM. CT. J. 61, 62 (1993); Feld, Juvenile (In)Justice, supra note 40, at 411; Metachick, supra note 41, at 39. One well-publicized study in New York in the 1970s found that only half of rehabilitation programs studied had an effect on recidivism. The authors interpreted the findings pessimistically, and opponents of rehabilitation soon announced that nothing worked to rehabilitate juvenile criminals. Jensen & Metsger, supra note 53, at 96 (citing Douglas Lipton et al., The Effectiveness of Correctional Treatment; A Survey of Treatment Evaluation Studies (1975)).
(55.) See Guide for Implementing, supra note 4 (discussing successful programs).
(56.) Mahoney, supra note 47, at 454. As herein noted, programs that include serious punishment may sometimes serve as deterrents because they are dramatic and likely to catch the attention of other youthful offenders. Such scare tactics do not work as a deterrent, however, where there is uncertainty of punishment, or where there is a long period between the crime and the punishment. In such situations, the youth who might be deterred by the fear of serious punishment will not connect the punishment to his behavior. In addition, the fact that many youths do not believe they will be caught also keeps serious punishment from being an effective deterrent. Id. at 455.
(57.) Some studies have concluded that punishment does not necessary lead to deterrence. Id. at 454.
(59.) These presumptions are questionable at best because few criminals think they will be caught. Arthur & Schwartz, supra note 54, at 62. Deterrence requires such responses because research indicates that young people need sanctions or other law enforcement reactions to immediately follow from their misdeeds in order to associate the causal relationship of their behavior and their punishment. Without this association. there could be no deterrent effect. Mahoney, supra note 47, at 454.
(60.) Mahoney, supra note 47, at 455.
(61.) Id. at 448, 460; Arthur & Schwartz, supra note 54, at 62. A 1986 study on the effect of incapacitation systems shows that a reduction in the crime rate beyond that already achieved would require at least a 10% to 20% increase in inmate population for each 1% reduction in crime. Mahoney, supra note 47, at 455 (citing Al Blumstein et al., Criminal Careers and Career Criminals (1986)).
(62.) Mahoney, supra note 47, at 455.
(64.) PETER GREENWOOD & FRANKLIN ZIMRING, One More Chance; The Pursuit of Promising Intervention Strategies for Chronic Juvenile Offenders 20 (1985).
(65.) Mahoney, supra note 47, at 455.
(66.) Arthur & Schwartz, supra note 54, at 62.
(67.) Mahoney, supra note 47, at 455-56. Though it is based on an equity of punishment, a "just desserts" approach is not necessarily punitive. By providing certain sanctions for certain offenses, it may provide incarceration for a juvenile who would otherwise be placed on probation. But it also might mandate a shorter sentence for a juvenile who has committed a relatively minor crime and otherwise runs the risk of lengthy incarceration. See BARBARA D. FLICKER, ABA, Juvenile Justice Standards Project 22 (1982) (laying out standards for juvenile justice that are based on proportionality in sanctions based on seriousness of offense committed and not merely court's view of juvenile's needs and on determinate sentencing; aim of standards was to remove subjective and/or arbitrary sentences that could lead to juvenile found guilty of committing relatively minor offense being committed for long period of treatment on basis of judge's subjective observations about amount of treatment juvenile might need).
(68.) See Mahoney, supra note 47, at 456 (discussing Washington's 1977 juvenile code based on "just desserts" model).
(71.) Jensen & Metsger, supra note 53, at 96-97; Tammy M. Poulos & Stan Orchowsky, Serious Juvenile Offenders: Predicting the Probability of Transfer to Criminal Court, 40 Crime & Delinq. 3, 4 (1994).
(72.) Jensen & Metsger, supra note 53, at 97.
(73.) Poulos & Orchowsky, supra note 71, at 4.
(74.) Barnes & Franz, supra note 34, at 117-18. The loss of faith in rehabilitation also resulted in changes to federal criminal sentencing. See United States v. Mistretta, 488 U.S. 361, 366 (1988) (cited in Francis B. McCarthy, The Serious Offender and Juvenile Court Reform: The Case for Prosecutorial Waiver of Juvenile Court Jurisdiction, 38 St. Louis U. L.J. 629, n.5 (1994)) (referring to S. Rep. No. 98-225 (1983), which referred to "outmoded rehabilitation model" for federal criminal sentencing, and recognized that efforts of criminal justice system to achieve rehabilitation of offenders had failed).
(75.) Romero & Brown, supra note 43.
(76.) Martin Forst et al., Youth in Prisons & Training Schools: Perceptions & Consequences of the Treatment-Custody Dichotomy, 40 Juv. & Fam. CT. J. 1, 2 (1989).
(77.) Jeffrey A. Butts, U.S. Dep't of Justice, Fact Sheet No. 18: Delinquency Cases in Juvenile Court, 1992 (1994) [hereinafter Butts, Fact Sheet No. 18].
(78.) Jeffrey A. Butts et al., U.S. Dep't of Justice, Juvenile Court Statistics 1991, at xxv (1994) [hereinafter Butts et al., Juvenile Court Statistics].
(79.) Id. at 8.
(80.) Forst et al., supra note 76, at 1.
(81.) Melissa Sickmund, U.S. Dep't of Justice, How Juveniles Get to Criminal Court 1 (1994). Of the cases transferred in 1992, 34% involved a person offense, 45% involved a property offense, and 12% involved drug violations. The cases most likely to be transferred were those involving drug violations. Id. at 3.
(82.) Id. at 1.
(83.) Butts, Fact Sheet No. 18, supra note 77, at 1.
(84.) Id. at 24.
(86.) In 1990, for example, 55% of murder arrests, 54% of rape arrests, and 13% of aggravated assault arrests resulted in felony convictions in adult criminal court. Patrick A. Langan & John M. Dawson, U.S. Dep't of Justice, Felony Sentences in State Courts (1993).
(88.) Butts et al., Juvenile Court Statistics, supra note 78, at 120-21, 123.
(89.) See Michael A. Jones & Barry Krisberg, National Council on Crime & Delinquency, Images and Reality: Juvenile Crime, Youth Violence and Public Policy 26 (1994) (citing Jeffrey Fagan et al., U.S. Dep't of Justice, The Comparative Impacts of Juvenile and Criminal Court Sanctions on Adolescent Felony Offenders (1991)).
(90.) See Fagan et al., supra note 29, at 51 (citing M. Royscher & al. Treating Juveniles as Adults in New York; What Does it Mean and How is it Working?, in Major Issues in Juvenile Justice Information and Training: Readings in Public Policy (J. Hall et al. eds., 1981)) (reporting findings of a study of New York's legislative waiver system that concluded that sanctions were no more severe in criminal court than in juvenile court and in many cases were less harsh).
(91.) Jones & Krisberg, supra note 89, at 26; see also D. Bishop et al., Prosecutorial Waiver: Case Study of a Questionable Reform, 35 Crime & Delinq. 179, 194 (1989) (reporting results of Florida study demonstrating that, although 96% of transferred youth were convicted in criminal court, only 31% received prison sentences, and of those going to prison, 54% received 1-3 years, 31% received 4-6 years, and 15% received longer sentences than 6 years). The results of these studies initially seem difficult to interpret, because it is possible that there are substantive differences between the types of juveniles sanctioned in juvenile as opposed to criminal court, and perhaps it is these differences that account for the different sentences.
(92.) Poulos & Orchowsky, supra note 71, at 3 (citing Cary Rudman et all, Violent Youth in adult Court: Process and Punishment, 32 Crime & Delinq. 75 (1986)).
(93.) Forst et al., supra note 76, at 1.
(94.) Stepp, supra note 41, at A1, A 12.
(95.) Forst et al., supra note 76; see Leone Lee, Factors Determining Waiver in a Juvenile Court, 22 J. Crim. Just. 329, 329 (1994) (describing waiver as "capital punishment" of juvenile justice).
(96.) Sickmund, supra note 81, at 1.
(97.) Id.; J.L. Leeper, Recent issues in Juvenile Jurisdiction Waiver Hearings, 12 J. Juv. L. 35,35-36 (1991).
(98.) Sickmund, supra note 81, at 1; Simon I. Singer, The Automatic Waiver of Juveniles and Substantive Justice, 39 Crime & Delinq. 253, 253 (1993)
(99.) Leeper, supra note 97, at 36.
(100.) Arthur & Schwartz, supra note 54, at 61.
(101.) Leeper, supra note 97, at 35-36.
(102.) Id. at 36.
(103.) Id. at 35.
(104.) Singer, supra note 98, at 256.
(105.) Sickmund, supra note 81, at 3.
(107.) Forst et al., supra note 76, at 2.
(108.) Arthur & Schwartz, supra note 54, at 62.
(110.) Fagan et al., supra note 29, at 55 (finding that, in a study of Boston, Newark, Detroit, and Phoenix, violent youths convicted and sentenced in criminal court receive considerably longer sentences in adult secure facilities than do their counterparts retained by the juvenile court); see Barnes & Franz, supra note 34, at 133 (revealing results of California study showing that, although juveniles with long histories of property offenses receive substantially lighter sentences in adult court than they would receive in juvenile court, offenders who commit personal or violent offenses, even without prior record, receive more punitive and longer term sentences in criminal court than they would receive in juvenile court). But see Jones & Krisberg, supra note 89, at 26 (citing studies that conclude that juveniles receive longer sentences and harsher treatment in juvenile courts than they would if convicted of same crime in criminal court); Joseph White et al., U.S. Dep't of Justice, National Inst. of Justice, The Comparative Dispositions Study 11 (1983) (same); Lee, supra note 95, at 331 (citing Joel Eigen, The Determinants and Impact of Jurisdictional Transfer in Philadelphia, in Major Issues in Juvenile Justice and Training: Readings in Public Policy (J.C. Hall et al. eds., 1981)) (reporting study demonstrating that punishment is harsher for juveniles in criminal than in juvenile court, but also noting that other studies have reached opposite conclusion); Joseph B. Sandborn, Certification to Criminal Court: The Important Policy Questions of How, When, and Why, 40 Crime & Delinq. 262, 266 (1994) (citing nine sources between 1977 and 1991 indicating juveniles received lighter sentences in criminal court than they would have received in juvenile court, but citing 10 studies between 1981 and 1992 indicating that adult court provides more punitive sanctions than juvenile court for similarly situated juveniles).
(111.) Bellinger, supra note 13, at 10-11. A weakness in this argument is that prosecutors generally do not either have or utilize an objective basis for determining who, if anyone, is no longer rehabilitatable. Bishop et al., supra note 91, at 192 (showing that only 55% of juveniles waived to criminal court by prosecutors had previously been admitted to a residential facility and 23% of those waived were charged with first offense).
(112.) Bellinger, supra note 13, at 12.
(113.) The term "legislative waiver" is somewhat of a misnomer in that it actually involves no initial waiver. Rather, it is a change in jurisdiction so that juveniles of certain ages charged with certain crimes will begin the judicial process automatically in a criminal court. Sandborn, supra note 110, at 264.
(114.) Donna Bishop & Charles Frazier, Transfer of Juveniles to Criminal Court: A Case Study and Analysis of Prosecutorial Waiver, 5 Notre Dame J.L. Ethics & Pub. Pol'y 281 (1991); Singer, supra note 98, at 254 (citing Barry Feld, Criminal Law: The Juvenile Court Meets the Principle of the Offense: Legislative Changes in Juvenile Waiver Statutes, 78 J. Crim. L & Criminology 471 (1987)).
(115.) Singer, supra note 98, at 254 Studies have shown that legislative waiver is not a deterrent to juvenile crime. See, e.g., id. at 258 (citing results of study of New York legislative waiver that concluded that legislative waiver duplicates the discretionary nature associated with juvenile justice officials).
(116.) Jensen & Metsger, supra note 53, at 97. But see Singer, supra note 98, at 254 (noting that most systems do include safety-valve mechanism for automatically-transferred juveniles to petition for waiver back to juvenile court jurisdiction; this petition system permits same discretion and lack of consistency that weakens any system of sanction on juveniles).
(117.) See, e.g., White et al., supra note 110, at 11; Dean J. Champion, Teenage Felons and Waiver Hearings: Some Recent Trends: 1980-1988, 35 Crime & Delinq. 579 (1989); Jensen & Metsger, supra note 53, at 102; S. Wizner, Discretionary Waiver of Juvenile Court Jurisdiction--An Invitation to Procedural Arbitrariness, 3 Crim. Just. Ethics 41 (1984).
(118.) Champion, supra note 117, at 583.
(119.) Id. at 584
(120.) Arthur & Schwartz, supra note 54, at 62.
(121.) R. Barri Flowers, The Adolescent Criminal: An Examination of Today's Juvenile Offender 169 (1990) (citing M. Kilfoyle & D. Lesser, NY Div. of Crim. Just. Services, Juvenile Offenders in New York State 9/1/78-6/30/81, at 81 (1981)) (discussing New York law enacted in 1978 that gave adult courts jurisdiction over juveniles aged 13 to 15 who were arrested for specified violent crimes and that resulted in fewer than 8% of first 3,898 arrested juveniles receiving sentences comparable to adults who had committed the same crime); see also Bishop et al., supra note 91, at 194 (showing that, of Florida juveniles transferred to criminal court, 96% were convicted but only 31% of those received prison sentences, generally ranging from one to three years).
(122.) White et al., supra note 110, at 11; Arthur & Schwartz, supra note 54, at 62.
(123.) Bishop et al., supra note 91, at 192. Nine states (GA, LA, MT,NJ, NM, OR, SC,VT, end WV)provide for judicial waiver specifically for property offenses; two jurisdictions (DC and LA) allow for prosecutorial waiver specifically for property offenses; five states (GA, KS, NY, OK, and VT) provide for legislative waiver specifically for property offenses; twenty-three jurisdictions (AL, AK, AZ, CA, DE, DC, FL, GA, ID, IL, IN, IA, KS, MD, MN, MS, NJ, ND, SC, SD, TN, WI, and WY) provide judicial waiver for any type of crime; and four states (FL, NE, VT, and WY) allow prosecutorial waiver for any type of crime. Sickmund, supra note 81.
(124.) See, e.g., Bishop et al., supra note 91, at 192; Champion, supra note 117, at 581; Feld, Juvenile (In)Justice, supra note 40, at 408; Poulos & Orchowsky, supra note 71, at 5; Singer, supra note 98, at 253 (citing Donna Hamparian et al., U.S. Dep't of Justice, Youth in Adult Courts: Between Two Worlds (1982)); Wizner, supra note 117.
(125.) Sickmund, supra note 81.
(126.) States vary in the management of adolescents sentenced to adult facilities. Some permit a youth convicted in criminal court to be housed temporarily in a juvenile training school and then moved to an adult prison to finish out her sentence when she reaches a specified age. Others provide that the criminal court judge commit the waived youths directly to the adult correctional facility. Fagan et al., supra note 29, at 57. In 1990, 11,782 persons under the age of 18 were admitted to adult correctional facilities and 59,789 persons subject to original juvenile court jurisdiction were admitted to adult jails. Krisberg & Decomo, U.S. Dep't of Justice, Juveniles Taken Into Custody: Fiscal Year 1991 Report 2 (1993). Between 1984 and 1990, the number of annual admissions of juveniles to adult prisons increased 30%, from 9,078 to 11,782. Wilson et al., supra note 2, at 4. In comparison, 11,700 juvenile cases were transferred to criminal court in 1992. Sickmund, supra note 81. While data is not available to indicate the number of juveniles waived to adult court and subsequently sentenced to an adult correctional facility, the number of juveniles in adult correctional facilities is similar to the number waived. This objection to the use of waiver does not stand when criminal court judges sentence juveniles to juvenile facilities.
(127.) Forst et al., supra note 76, at 9.
(132.) Studies show significant etiological links between exposure to violence and subsequent violent and criminal behavior. Id. at 10. Even where juveniles are not directly victimized, exposure to institutional violence in adult correctional facilities provides juveniles with an education in being a better criminal. Various studies demonstrate a causal link between previous incarceration and high recidivism rates. Id. at 11.
(133.) Id. at 3. Juveniles who leave adult institutions commit more new crimes earlier than youths leaving juvenile corrections facilities. Id. In a comparison of juvenile and criminal facilities, researchers found that juvenile facilities are consistently more involved in the provision of counseling and remedial education and, in general, demonstrate more concern with inmates' behavior and progress than adult facilities. Id. at 7.
(134.) Mahoney, supra note 47, at 457. While studies show that young people need quick and certain consequences in order to be deterred from negative behavior or to learn from their mistakes, criminal court systems typically involve extended pretrial detention and a longer adjudication process than do juvenile court systems. Id. at 456-57; FAGAN et al., supra note 29, at 45.
(135.) Bellinger, supra note 13, at 13. Many states have little in the way of guidelines for courts and prosecutors to determine who to waive to adult court end who to keep in juvenile court. Barnes & Franz, supra note 34, at 121; Bishop et al., supra note 91, at 181; Feld, Juvenile (In)Justice, supra note 40, at 408; Wizner, supra note 117, at 42. While appellate courts in some states require that trial courts consider certain factors in order to transfer a juvenile, they do not require that all or even any of the factors be satisfied in order to uphold the trial court's decision. For example, Arizona law requires judges to consider eight criteria in a decision to waive, including legal factors like current offense and prior record, and juvenile characteristics such as age, background, and personal characteristics, treatment prognosis, and concerns about public safety. Yet a study of waiver outcomes in Arizona demonstrate that only one of those criteria actually has any bearing on decisions-record of prior waivers. Lee, supra note 95, at 334. Thus, the only factor that accurately predicted outcomes of waiver decisions was whether a youth had been waived previously. Id Broad discretion is often built in by statute. Many state statutes include "amenability to treatment" as the primary criterion judges must consider in making waiver decisions. Fagan et al., supra note 29, at 26; Arthur & Schwartz, supra note 54, at 65. Where states do not have effective treatment programs for juvenile offenders, the judge is left with wide discretion based on this criterion alone. See Arthur & Schwartz, supra note 54, at 64 (observing that in almost all states judges will waive a juvenile to adult court merely upon a state showing that treatment will not rehabilitate the offender).
(136.) M.A. Bortner, Traditional Rhetoric, Organizational Realities: Remand of Juveniles to Adult Court, 32 Crime & Delinq. 53, at 71, n.5 (1986); Joel Eigen, The Determinants and Impact of Jurisdictional Transfer in Philadelphia, in Major Issues in Juvenile Justice Information and Training Readings in Public Policy 333 (J.C. Hall et al. eds., 1981); see Fagan et al., supra note 29, at 40 (finding racial discrepancies but concluding that race is not a significant predictor of waiver decisions); Poulos & Orchowsky, supra note 71, at 15 (reporting findings that indicated that race was not a significant predictor of waiver decisions).
(137.) Singer, supra note 98, at 257.
(138.) See generally Jones & Krisberg, supra note 89, at 3640 (citing studies indicating that some programs are effective for serious juvenile offenders).
(139.) Romero & Brown, supra note 43 (indicating that among the large majority of states that have instituted juvenile justice reforms in last two years, most prevalent initiatives include amending waiver provisions within juvenile code to facilitate judicial and prosecutorial waiver and expanding legislative waiver).
(140.) Feld, Criminalizing, supra note 34, at 75-76. There is great variety in the type Of institution that is considered a juvenile correctional facility, ranging from small cottage communities to campus-style dormitories to maximum-security fortresses; most, however, are large, congregate institutions. Id; see also Flowers, supra note 121, at 171-74.
The majority of juvenile offenders placed in secure congregate facilities have committed non-violent offenses. Krisberg & Decomo, supra note 126, at 22. In 1989, only 15% of juveniles in public facilities were incarcerated for violent offenses. Jones & Krisberg, supra note 89, at 27 (citing R. DeComo et al., U.S. Dep't of Justice, Juveniles Taken Into Custody Research Program: Fiscal Year 1992 Annual Report (1993)).
(141.) Feld, Criminalizing supra note 34, at 75-76.
(142.) Id.; see also Schwartz, supra note 4, at 11-12 (discussing various suits brought challenging treatment and conditions in congregate facilities).
(143.) Feld, Criminalizing, supra note 34, at 75-76. Lawsuits in several jurisdictions have challenged the conditions at these facilities. Schwartz, supra note 4, at 12 (discussing Bobby M. v. Graham, a case brought against Florida's training schools alleging, among other items, that staff members had beaten and kicked children while they were tied or shackled).
(144.) Dale Parent et al., U.S. Dep't of Justice, Conditions of Confinement: Juvenile Detention and Corrections Facilities (1994).
(148.) Barbara Allen-Hagan, U.S. Dep't of Justice, Public Juvenile Facilities: Children in Custody 9 (1991).
(150.) Judith Sheindlin, What Can Be Done About the Scourge of Violence Among Juveniles? The Experts on Different Fronts of the Battlefield Discuss Strategies, N.Y. Times, Dec. 30, 1994, at A25. In comparison, Massachusetts has achieved a 23% recidivism rate with its small facility networks. See infra notes 190-96 and accompanying text (discussing Massachusetts' reforms and results of those reforms).
(151.) Studies demonstrate that incarceration in such facilities generally has a negative impact on recidivism. See. e.g., Flowers, supra note 121, at 167; Albert R. Roberts & Michael J. Camasso, The Effect of Juvenile Offender Treatment Programs on Recidivism: A Meta-Analysis of Forty-six Studies, 5 Notre Dame J. L. Ethics & Pub. Pol'y 421, 437 (1991); Guide for Implementing, supra note 4, at 137. Moreover, such facilities make no dent in the 70-80% recidivism rates for chronic offenders. Greenwood & Zimring, supra note 64, at 40.
(152.) U.S. Dep't of Justice, What Works: Promising Interventions in Juvenile Justice (1994).
(154.) See, e.g., Guide for Implementing, supra note 4, at 151.
(155.) Such programs have been shown to increase recidivism by 10-12%. Edmonds & Meddis, supra note 12, at A1.
(156.) Id. Boot camp-like programs have appeared in a variety of forms called shock incarceration, which provide intensive, short term, intermediate punishment. Dale Parent, U.S. Dep't of Justice, Shock Incarceration: An Overview of Existing Programs (1989). An Oklahoma study determined that, after twenty-nine months, half Of shock incarceration graduates returned to prison, while only 28% of a group of similar offenders in other programs returned. Id. A Georgia study found little impact on recidivism from these programs. Id. Nevertheless, these programs save funds; a study of similar approaches in New York, Oklahoma, Georgia, and Mississippi indicated that because these programs confine juveniles for shorter periods than traditional facilities, overall costs were lower. Id. at 16.
(157.) David Shichor & Arnold Binder, Community Restitution for Juveniles: An Approach and Preliminary Evaluation, in Youth Crime, supra note 34, at 81-82.
(158.) A Utah study found that, of youths on formal probation, 32% of those who paid restitution reoffended, while 38% of those who did not pay restitution reoffended. Id. Probation coupled with restitution consistently produced lower recidivism rates than probation alone. Jeffrey A. Butts & Howard N. Snyder, U.S. Dep't of Justice, Restitution & Juvenile Recidivism (1992).
(159.) Albert R. Roberts, Wilderness Programs for Juvenile Offenders: A Challenging Alternative, 39 Juv. & Fam. Ct. J. 1 (1988).
(160.) Id. at 3-4.
(161.) Physical challenges usually involve outdoor education and culminate in a several day stay where the solitary youth must find and make his own campsite and food. Id. at 3.
(162.) Id. at 4.
(163.) Id. at 6-9. Even 43% is a substantial improvement over training school rates of 70% or more. There is, however, some discrepancy in how recidivism is defined. Some studies look only to as few as six months following completion of the program, while others consider as many as two years. Id. at 10.
(164.) Richard Wiebush, Juvenile Justice Intensive Supervision: The Impact on Felony Offenders Diverted from Institutional Placement, 39 Crime & Delinq. 68 (1993).
(165.) Id. at 71.
(166.) Mendel, supra note 13, at 24.
(168.) Wiebush, supra note 164, at 68.
(169.) What Can We Do About Violence: A Bill Movers Special (PBS television broadcast, fan. 9, 1995) (transcript available through Journal Graphics, Inc.).
(175.) Guide for Implementing, supra note 4, at 156.
(177.) Id. at 155.
(178.) Nat'l Coalition, Myths & Realities, supra note 45, at 3.
(180.) Guide for Implementing, supra note 4, at 155.
(182.) Frank Klimko, National City Adopts Program Targeting 50 Violent Teenagers, San Diego Union Tribune, Sept. 28, 1994, at B7.
(187.) Mahoney, supra note 47, at 460.
(188.) A continuum of care provides immediate treatment to a juvenile offender throughout his experience within the juvenile justice system. Thus, he is monitored carefully from detention through aftercare, receiving appropriate interaction with juvenile law enforcement officials. Wilson et al., supra note 2, at 11 (explaining the necessary components of a model comprehensive plan for addressing juvenile crime).
(189.) Carol Kreck, Lock 'em Up or Rehabilitate? Programs Vary in Five States, Denver Post, Nov. 1, 1994, at E1.
(190.) Wilson et al., supra note 2, at 37.
(191.) Mahoney, supra note 47, at 460.
(195.) Jones & Krisberg, supra note 89, at 40.
(196.) Gary Enos, Troubled Youths; States Throw Away the Key on Most Kids, City & State, April 26, 1993, at 9.
(197.) Among those identified as most promising by a variety of researchers and practitioners are the DOJ Violent Juvenile Offender Program, the Florida Environmental Institute, and wilderness programs such as the Spectrum Wilderness Program and Visionquest. Guide for Implementing, supra note 4, at 152, 153, 155, 156; Nat'l Coalition, Myths & Realities, supra note 45, at 2. State systems such as those in Missouri and Massachusetts, which include small, secure facilities, education and vocational programs, and a full continuum of care, including aftercare, are routinely cited by researchers as among the best for reducing recidivism and came rates as well as keeping costs down. See, e.g., Mendel, supra note 13, at 26.
(198.) See, e.g., Bellinger, supra note 13, at 15; Mahoney, supra note 47, at 457.
(199.) Greenwood & Zimring, supra note 64, at 22.
(201.) See generally Guide for Implementing, supra note 4 (outlining comprehensive approach to treatment and prevention).
(202.) Id. at 29. Historically, such risk assessment systems, if used at all, have been highly discretionary procedures, based on the judgments of people with different philosophies and training. Consequently, they have not worked effectively. While the DOJ can point to increasing numbers of states that are turning towards risk assessment tools, studies show that at least until the last few years, assessment tools have been poorly designed or used incorrectly. Id. at 189-93. While adequate risk assessment is necessary to making a graduated sanctions program work, it seems that producing an effective risk assessment system is an ambitious challenge not yet met.
(203.) Id. at 134-36 (arguing that comprehensive treatment programs and graduated sanctions are best approach for creating effective juvenile justice system); Mendel, supra note 13, at 26 (same); Nat'l Coalition, Myths & Realities, supra note 45, at 2 (same).
(204.) Mendel, supra note 13, at 25.
(205.) Mahoney, supra note 47, at 444 (citing M. Wolfgang et al., Delinquency in a Birth Cohort (1972)).
(206.) Mendel, supra note 13, at 26.
(207.) Guide for Implementing. supra note 4, at 13.
(208.) Bernard, supra note 3, at 177-78.
(210.) Mahoney, supra note 47, at 460.
(211.) Nat'l Coalition, Myths & Realities, supra note 45, at 2.
(212.) Dale Mann, Intervening With Convicted Serious Juvenile Offenders viii (1976).
(213.) Greenwood & Zimring, supra note 64, at 45 (noting that common ingredients of promising intensive treatments of serious offenders include staff with clear sense of common purpose, shared beliefs, high morale, pride, and sense of individual effIcacy among senior staff; staff at wilderness-type programs tend to he endlessly cheerful, positive, hard working, friendly, affectionate, and slow to anger).
(216.) Id. at 38-39.
(217.) Id. at 48-49.
(218.) Nat'l Coalition, Myths & Realities, supra note 45, at 2.
(219.) Mahoney, supra note 47, at 60 (citing Robert Coates et al., Diversity in a Youth Correctional System: Handling Delinquents in Massachusetts (1978)).
(220.) Nat'l. Coalition, Myths & Realities, supra note 45, at 2.
(222.) Guide for Implementing, supra note 4, at 13; David Altschuler, et al., U.S. Dep't of Justice, Intensive Aftercare for High Risk Juveniles: Policies and Procedures 4-5 (1994).
(223.) Guide for Implementing, supra note 4, at 158.
(224.) Id. at 63 (citing R.J. Sampson & J. Laub, Crime in the Making: Pathways and Turning Points Through Life (1994)).
(225.) Wilson et al., supra note 2, at 19.
(226.) Guide for Implementing, supra note 4, at 11.
(228.) Id. at 12.
(232.) Id. at 12-13.
(233.) Id. at 144.
(234.) Id. at 148.
(235.) Id. at 148-57.
(236.) "Community-based" is a loosely used term that has come to mean nearly any program operated outside a traditional congregate correctional facility. It has been applied to programs ranging from highly secure, non-voluntary group homes for violent offenders to nonresidential, voluntary vocational training. It was originally termed by the Congress to refer to programs located near the juvenile's home or family and which maintain community and consumer participation in the planning, operation, and evaluation of the program. Shireman & Reamer, supra note 4, at 147-48. The benefits of community-based care that meets this definition include a reduction in recidivism, as indicated by research-supported findings that family counseling is among the few rehabilitative techniques that produce significant reductions in recidivism, as well as the ability to manage a continuum of services that includes effective aftercare because the juvenile is released into a community near the facility in which she was held. Roberts & Camasso, supra note 151, at 421. Proximity to the community enables direct and regular family involvement with the treatment process as well as a phased reentry into the community. The use of community-based facilities, in which the community is involved in the planning and evaluation of programs, also is politically useful, for it helps to build community consensus around priorities and services and also builds support for the kinds of comprehensive strategies, including job training and placement, that make the difference in the most successful programs. Guide for Implementing, supra note 4, at 9, 14.
(237.) Guide for Implementing, supra note 4, at 13.
(238.) Id. at 14.
(239.) Nat'l Coalition, Myths & Realities, supra note 45, at 2.
(240.) Guide for Implementing, supra note 4, at 190. One exception, Broward County, Florida, successfully uses a series of objective criteria to determine which juveniles to hold without bail while awaiting trial; the county reduced the average daily population of its juvenile detention home by more than 50% between 1988 and 1990, without a corresponding increase in reoffense or failure to appear at trial. Nat'l Coalition, Myths & Realities, supra note 45, at 23.
(241.) Guide for Implementing, supra note 4, at 190.
(242.) Id. at 31.
(243.) Barry Krisberg et al., U.S. Dep't of Justicee National Juvenile Custody Trends: 1978-1989, at 21 (1992). It is also in part due to the lack of care in utilizing objective assessment tools. A 1994 study found that less than one-third of juveniles in custody were convicted of violent crimes. Guide for Implementing, supra note 4, at 194.
(244.) Guide for Implementing, supra note 4, at 190 (citing W. Barton & K. Gorsuch, Risk Assessment and Classification in Juvenile Justice, paper presented at the annual meeting of the American Society of Criminology (1990)).
(245.) Id. at 193.
(246.) Greenwood & Zimring, supra note 64, at 22 (describing D.P. Farrington's seven criteria scale: (1) rated troublesome by teachers at age 8-10; (2) conduct disorders; (3) acting out; (4) social handicaps; (5) criminal parents; (6) poor parental childrearing practices; (7) low IQ).
(247.) Guide for Implementing, supra note 4, at 148-49.
(250.) Id. at 34-35.
(252.) An exception would he where a juvenile needs a longer sentence than a juvenile system can impose. Longer sentences, however, could he worked into a remodeled juvenile system if the age of juvenile court jurisdiction were raised, or if the juvenile and criminal courts were linked as in New Mexico Marilyn Houghtalin & G. Larry Mays, Criminal Dispositions of New Mexico Juveniles Transferred to Adult Court, 37 Crime & Delinq. 393, 403 (1991); see Guide for implementing, supra note 4, at 11 (discussing possibility of unified family court with jurisdiction over all civil and criminal matters affecting family).
(253.) Guide for Implementing, supra note 4, at 11.
(254.) Id. at 134 (describing savings of $11 million per year achieved by Massachusetts when it moved from large congregate training schools to small, community-based approach).
(255.) The public seems, at least to the politicians who want their votes, to support such measures; a 1993 USA Today/CNN/ Gallup Poll found that 73% of those surveyed said that "violent juveniles should he treated as adults rather than as defendants in lenient juvenile courts. Francis B. McCarthy, The Serious Offender and Juvenile Court Reform: The Case for Prosecutorial Waiver of Juvenile Court Jurisdiction, 38 St. Louis U. L.J. 629 (1994); see also Loretta Stalans & Gary Henry, Societal Views of Justice (1994) (on file with the Center for Urban Policy Research at Georgia State University) (finding that most survey respondents want repeat juvenile offenders who kill and have no history of child abuse placed in adult court).
(256.) See, e.g., E.J. Dionne, Populist Politics, Wash. Post, Feb. 13, 1996, at A19 (discussing impact of crime on 1988 presidential election in ensuring George Bush's victory).
(257.) Horton, an imprisoned felon, was released for a weekend furlough under a Massachusetts program; while on furlough, Horton escaped and committed a vicious rape and murder. Dorothy Gilliam, Black Men, Walking Tall. Wash. Post, Oct. 21, 1995, at C1. In Bush's television advertisements, Horton became the symbol of Dukakis' approach to crime. Richard Cohen, Clarence Darrow's Lesson, Wash. Post, Dec. 2, 1988, at A27. Many commentators viewed the Horton issue as one that guaranteed Bush's victory-both because of its crime message and also because, as Horton was black, his use as a symbol played to some voters' racist tendencies. See, e.g., Dionne, supra note 256, at A19 (discussing seminal role of Willie Horton message in 1988 presidential campaign); Thomas B. Edsall, Buchanan's Populist Pitch May Pose Problem for GOP; Mainstream Wary of Anti-Corporate Message, Wash. Post, Feb. 14, 1996, at AI (same). .
(258.) Mendel, supra note 13, at 13. "Midnight Basketball" was the popular name given to a proposal in the 1994 Crime Bill. In these prevention programs, towns would open their recreation facilities to young men during late night hours. In order to participate in the late night games, the youths would be required to meet certain standards such as attendance in school or education workshops, and to meet a code of conduct. In some programs, if a youth got in trouble with the law, he was expelled from the league. These programs received significant support from law enforcement officials. One town reported a 60% reduction in drug related crime after the midnight sports league was formed. Id.
(259.) Romero & Brown, supra note 43.
(260.) Fagan et al., supra note 29, at 67-80; Sandborn, supra note 110, at 272-75.
(261.) National Council of Juvenile and Family Court Judges, where we Stand: an Action Plan for Dealing with Violent Juvenile Crime 5-6 (1994).
(262.) See, e.g., supra note 195 and accompanying text (discussing Massachusetts' annual savings of $11 million due to a shift away from congregate facilities towards smaller secure facilities and other community based programs).
(263.) Richard McCorkle, Research Note, Punish and Rehabilitate? Public Attitudes Toward Six Common Crimes, 39 Crime & Delinq. 240, 241 (1993).
(264.) Sam Meddis, In a Dark Alley, Most Feared Face is a Teen's, USA Today, Oct. 29, 1993, at 6A.
(265.) Bernard, supra note 3, at 17.
(266.) Id. at 186-87.
(267.) Interview with Reginald Robinson, Deputy Assistant Attorney General, Office of Justice Programs, U.S. Dep't of Justice (July 6, 1995).
(268.) See generally Simon I. Singer, The Case Processing of Juvenile Offenders in Criminal Court and Legislative Waiver in New York State (1992) (unpublished manuscript, on file with the DOJ).
(269.) Id. at 8.
(273.) Id. at 9. The crime occurred in the wake of the state's passage of the 1976 Juvenile Justice Reform Act, which substantially increased the maximum length of time violent delinquents could be placed in Department for Youth institutions. Id.
(274.) Id. at 10; telephone interview with Barry Krisberg, Director, National Council on Crime & Delinquency (July 7, 1995).
(275.) Singer, supra note 268, at 10.
(276.) National Council of Juvenile & Family Court Judges, supra note 261, at 3.
(278.) Interview with Peter B. Edelman, Assistant Secretary for Planning and Evaluation, U.S. Dep't of Health & Human Services (May 1995).
(279.) Kreck, supra note 189, et al.
(280) Martha Shirk, A Big Step Forward for Juvenile Justice, St. Louis Post-Dispatch, May 29, 1994, at 4B.
(282.) Telephone interview with Mark Steward, Director, Division of Youth Services, Missouri (July 11, 1995).
(285.) Id; Kreck, supra note 189.
(286.) Telephone interview with Mark Steward, supra note 282.
(288.) Telephone interview with Vicky Weimholt, Program Director, Division of Youth Services, Missouri (January 8, 1996).
(289.) Telephone interview with Mark Steward, supra note 282.
(293.) Telephone interview with Vicky Weimholt, supra note 288.
(294.) Telephone interview with Mark Steward, supra note 282; telephone interview with Vicky Weimholt, supra note 288.
(295.) Telephone interview with Vicky Weimholt, supra note 288.
(298.) Telephone interview with Thelma Gilpin, Chief Fiscal Officer, Division of Youth Services. Missouri (January 8, 1996).
(300.) Telephone interview with Vicky Weimholt, supra note 288.
(301.) Id. (302.) Id.
(303.) Telephone interview with Mark Steward, supra note 282.
(309.) Martha Shirk, Young Blood: Lawmakers Debate How to Deal with Violent Juveniles, St. Louis Post-Dispatch, Dec. 11, 1994, at 1B.
(310.) Telephone interview with Mark Steward, supra note 282.
(312.) Kimberly K. Leonard, A Faulty Juvenile-Crime Bill, St. Louis Post-Dispatch, May 21, 1995, at 3B.
(314.) Telephone interview with Mark Steward, supra note 282; telephone interview with Barry Krisberg, supra note 274.
(315.) Bernard, supra note 3, at 17.
(316.) For example, Barry Feld documents a similar process of seeking support from law enforcement and numerous other interest groups to coordinate a strategy for implementing the recommendations of the Minnesota Advisory Task Force on the Juvenile Justice System. Barry C. Feld, Violent Youth and Public Policy: A Case Study of Juvenile Justice Law Reform, 79 Minn. L. Rev. 965 (1995). Moreover, he specifically notes:
I must acknowledge the political astuteness of compromising principle with
expediency. Several previous Task Forces and commissions maintained the
policy high-ground ... and failed to achieve any significant juvenile justice
reform.... The Task Forces subsequent retreat from a politically charged
symbol[, the statutory right to a jury trial for juveniles,] prevented its
opponents from focusing hearings on a peripheral issue, and from using an
`idealistic' recommendation as an opening to disparage and even scuttle the
broader reform proposals.
Id. at 1108.
(317.) Telephone interview with Barry Krisberg, supra note 274.
(319.) Romero & Brown, supra note 43. Although the Colorado system is not fashioned on the ideal model described in this paper, Governor Romer's successes are instructive because he has aggressively marketed as "tough" the most punitive portions of his juvenile crime strategy, while at the same time creating and preserving community-based prevention programs and winning funds for them. Id.
(320.) What Can We Do About Violence: A Pill Moyers Special, supra note 169.
(321.) Meddis, supra note 264, at 6A (citing poll results demonstrating that 66% of the public considered boot camps the best penalty for first-time violent juvenile offenders).
(322.) Telephone interview with Barry Krisberg, supra note 274. Klaas was a young California girl who was kidnapped and murdered by an ax-convict. Id.
(323.) Tupper Hill, State's Parole System Attacked, San Fran. Examiner, Dec. 5, 1993, at A1.
(324.) It's Time to Rewrite the Three-Strikes Law, San Fran. Chronicle, Feb. 18, 1996, at 8.
Lucinda K. Treat, Jennifer M. O'Connor, J.D., 1997, Georgetown University Law Center; M.P.A., 1993, Columbia University; A.B., 1987, Harvard University. Lucinda K. Treat, J.D., 1997, Georgetown University Law Center; B.A., 1992, University of Wisconsin. We extend special thanks to Peter B. Edelman for his generous and indispensable commentary; to all who assisted us in obtaining information, particularly Barry Krisberg, Reginald Robinson, Erik Reid, David Brown, Mark Steward, and those at the Missouri Division of Youth Services; and to Paul Meyer and Christopher Porsella for their endless assistance.