Earlier this week, the U.S. Supreme Court heard arguments about whether sentencing 14-year-olds involved in homicide to life imprisonment without possibility of parole violates the Constitution's prohibition against cruel and unusual punishment.
We will let the justices grapple with the challenging constitutional issue — but as a matter of public policy, we are deeply troubled by the emphasis on retribution that has crept into juvenile justice, crowding out viable concepts and practices that emphasize rehabilitation.
This week's cases have reopened a national debate about the nature of juvenile justice. And with that debate have come some dramatic stories of rehabilitated youths — such as Lawrence Wu, a teenage gang member whose brush with justice helped him renounce his gang, return to his family and discover the redemptive power of religious belief. Wu eventually went on to Columbia Law School, where he became editor-in-chief of the Columbia Law Review.
Wu's story is fascinating because of the moral and social distance he traveled in a short time. Although Wu's story may seem exceptional, social and neurological science is helping us better understand that juvenile involvement in crime, even serious crime, is not a reliable indicator of adult dispositions and behaviors.
Because their brains are not fully developed, youths are more impulsive, more subject to peer pressure and less able to understand the long-term consequences of their actions. Because they are less capable, they are less culpable. And as a society, we have tended to understand this by providing them a separate juvenile justice system that, in theory, appreciates the special rehabilitative opportunities for young offenders.
Nonetheless, over the past three decades, every state has toughened its juvenile justice codes to de-emphasize rehabilitation and instead focus on retribution and incapacitation. Consequently, the United States imprisons juvenile offenders at a staggering rate — nearly five times higher than the next most punitive nation. And far too many of those incarcerated youths find themselves in juvenile facilities where there is documented violence, abuse and substandard conditions.
State budget constraints have required legislatures and juvenile justice systems to evaluate the actual need for youth incarceration in light of compelling research about what actually works in juvenile justice. In this period of re-evaluation, the stunning success of smaller, community-based therapeutic models in rehabilitating delinquent youths remains an under-told story that needs to be understood, appreciated and embraced.
But even in states with relatively functional systems of juvenile justice, young offenders can be easily transferred out of the juvenile justice system into adult criminal courts and detention.
There may indeed be cases where transfer is appropriate. Consequently, we believe that judges within the juvenile justice system should have the discretion to waive their jurisdiction and transfer cases to adult criminal court when there is a formal request from prosecution and a full "waiver hearing" based on evidence and clearly articulated standards.
The reality, however, is that many states have given prosecutors the sole discretion to transfer juvenile cases to the adult criminal courts. Such prosecutorial discretion is exercised without guidelines and often without any evidentiary record. In many states, lawmakers have automatically excluded certain cases from juvenile court because of the nature of the offense, such as murder.
Consequently, far too many young offenders who could benefit from therapeutic or rehabilitative services are caught up into a tough adult criminal justice system where retribution and public safety are paramount values.
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