COURTS AND JUDICIAL PROCESS: CJ 4044-001
Juvenile Justice Reform
Stella Steele
4/15/2011
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No child is born as a “bad seed”. The one universal truth is that children are born without
criminal intent. When a child commits serious criminal acts, society must face the realization that he was
molded into a criminal rather than choosing to become one. Whether it is dysfunctional parenting or a
culture which glamorizes violence and destructive mindsets, a child is taught to be, not born to be, a
criminal offender. At some point society must share in the responsibility of crimes committed by
children for creating a culture and conditions where children fall prey to criminal mentalities. A part of
sharing in the responsibility of crimes committed by children begins with addressing issues in our
criminal justice system. The United States is only one of two countries left in the world that allows
children to spend life in prison without the possibility of parole. Many states have no limit on how young
a child must be to face trial in adult court, and if guilty can be placed with adult prisoners regardless of
their current age. Rather than rehabilitating a young moldable mind, our system elects to throw children
in with vultures which creates an even more hardened heart. These moral failures on the part of our
nation must be taken into consideration while looking at two primary topics: 1) evaluation of the
existing issues in our juvenile justice system and areas to be reformed and 2)analyze the four aspects of
criminal justice theory: retribution, incapacitation, deterrence, and rehabilitation.
In addition to subjective moral considerations deserve consideration, vast and growing bodies of
objective scientific findings have called into question how society should deal with the issue of juvenile
justice. Can the justification of deterrence be logically applied to long prison sentences when scientific
evidence shows that juveniles have greatly diminished abilities to resist peer pressure or to consider the
long term consequences of their actions? Given these factors, it appears clear that the possibility of
facing long prison sentences plays a deterrence in few, if any, youthful offenders. Science has also
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proven that juveniles have a far greater potential for rehabilitation than adults. The Giddings State
School handles the most serious juvenile delinquents in the state of Texas and operates by use of these
scientific principles. The purpose of their program is to protect society by holding youth accountable for
their behavior, provide individualized education, treatment, life skills, and employment training to
reduce recidivism and facilitate successful reintegration into society. The approach used involves the
repair of damage done to youth physically, mentally, and environmental factors which led to criminal
behavior. The 2010 agency review of Giddings shows that youth completing the high intensity mental
health program demonstrated a reduction in re-arrest risk by 39% and re-incarceration by 89%; youth
completing specialized treatment programs show re-arrest risk reduction by 50%; and youth who
completed the Capital and Serious Violent Offender Treatment Program were 74% less likely to be re‐
arrested. Youth completing any of the programs offered show downward recidivism rate trends (Texas
Youth Commission, 2010). Such an approach seems more logical than incarceration in prisons where
youth experience greater amounts of victimization, higher suicide rates, inferior treatment services, and
higher recidivism rates amongst transferred youth (Myers, 2003).
The biological development from childhood into adulthood involves significant changes to the
human brain, especially the frontal lobe. The frontal lobe of the human brain concerns itself with
“regulating aggression, long-range planning, mental flexibility, abstract thinking, the capacity to hold in
mind related pieces of information, and perhaps moral judgment” (Bower, 2004). Biological maturity is
not reached until 21 or 22 and brain maturity is estimated around age 25. This accounts for the
aforementioned diminished ability to consider the long term consequences of actions:
“At least one researcher has found that teenagers typically have a very short time-horizon, looking only
a few days into the future when making decisions. Another study concluded that only 25 percent of
tenth graders (whose average age is sixteen), compared to 42 percent of twelfth graders (whose
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average age is eighteen), considered the long term consequences of important decisions. To the extent
that adolescents do consider the implications of their acts, they emphasize short-term consequences,
perceiving and weighing longer term consequences to a lesser degree” (Amnesty International; Human
Rights Watch, 2005). According to additional research reported by Human Rights Watch “Because their
frontal lobes function poorly, adolescents tend to use a part of the brain called the amygdala during
decision-making. The amygdala is responsible for impulsive and aggressive behavior, and its dominance
makes adolescents ‘more prone to react with gut instincts’. In adult brains, the frontal lobes offer a
check on emotions and impulses originating from the amygdala, but this check does not work on the
same extent in children’s brains” (Parker, 2005). This creates a vulnerability in children towards criminal
influences which is not encountered in adults. It is especially true when the child grows up in an
environment with substantial abuse or with criminally minded adults who use the child for criminal
exploits and encourage anti-social behavior.
Statistics clearly show a correlation between a childhood of abuse and poverty and crime later in
life. While fully functioning adults have little justification in trying to use their childhood to deflect
responsibility for their actions, adolescents who are “prone to react with gut instincts” have less
responsibility for their actions when their “gut instincts” have been programmed from their
environment to be violent and asocial. The younger the adolescent the lower the biological capacity to
overcome those “gut instincts” is and the less responsibility which can logically be assigned to him.
Actions must have consequences and crime must be punished by society in order to maintain justice. Yet
justice also requires that punishment must be proportional to the offender’s responsibility and to the
crime committed. There is no such thing as a violent crime which is not horrendous or that does not
cause serious psychological and/or physical pain to the victims. This leads some to contend that severe
sentences always “fit” the crime, but no crime simply rests in the act itself. Intent and degree of
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responsibility has always played a role in criminal justice, from the historical justification that a man can
kill his wife’s lover to a more modern example of the killing of a person mistakenly, but reasonably,
believed to be posing an immediate threat to the life of another. Clearly both cases involve brutality,
both cases involve a great deal of pain to the victims and their family, and yet both cases are
distinguished by society as being different than a murder out of malice.
When the intent of a juvenile crime is considered, even malicious intent must be understood in
light of the child’s mental and emotional development. Can society logically view the malicious intent of
a fully functioning adult capable of strong rational thought and emotional control the same as the
malicious intent of a sixteen year old who has less of an ability to act with rational thought and with
emotional control? The answer is no and so the retribution levied at a juvenile offender, no matter the
severity of his crime, must be less than that levied at an adult. This does not mean, however that a
lengthy prison sentence is not appropriate in some instances. Certainly even the most heartbreaking of
childhoods the violent juvenile offender may have experienced will not alleviate the need to protect
society by incapacitating him. Even if his upbringing is 100 percent responsible for his actions, society
must be protected. There are those who have been ruined for life and may never choose to be
responsible citizens. Despite the fact that these situations are devastating tragedies, it does not negate
the need for protection of fellow citizens. Once a child becomes criminally violent, no matter the reason,
without maturity and rehabilitation, he is likely to offend again. The need to protect society from harm
overrides the complete responsibility of third parties for a child’s criminal behavior. Maturity can only
come with age and rehabilitation with appropriate program availability. It is important to focus on
efforts towards rehabilitation which will not happen in a prison with a lifelong sentence. Parole eligibility
should be a possibility once the person has reached full maturity; determining them as ruined for life is
premature prior to complete brain development. If the now adult appears to remain a threat to society
then they simply stay in prison.
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Determining that a youthful offender must be incapacitated, regardless of whether they are
tried in adult court and sentenced to 40 years, does not mean that immediate placement into prison
necessary. Placing a child in a penitentiary with older hardened criminals should never have become a
viable option in a country that has deemed cruel and unusual punishment unconstitutional. There is no
punishment crueler and more unusual than housing juveniles with adult sexual predators and violent
gang members waiting to violate and extort the week newcomer too young to protect themselves.
Considering the fact that many children tried as adults have committed homicide or parricide because
they were abused by the perpetrator who later became the victim, a punishment of further abuse is
simply outrageous. It is common knowledge that victims of child abuse are often too afraid to go to
authorities and eventually take matters in their own hands; as a result of not reporting abuse, there is
rarely sufficient evidence to prove abuse existed. Having such evidence may assist in making a decision
to retain the case in juvenile court due to mitigating circumstances, therefore avoiding prison abuse.
Regardless of whether or not there is any mitigating evidence proving why a juvenile committed a
heinous crime, it is never appropriate to incarcerate children with adults. The United States needs to
stop ignoring the fact that this practice is in violation of international human rights standards which
prohibit combined incarcerations. Separate facilities or segregated areas need to be created for minors
serving prison time until they become adults. This should not mean that on their eighteenth birthday an
instant move to prison should occur, a mental evaluation should be conducted prior to a move to assure
a safe transition.
Because a juveniles mind is changing and growing, he is particularly capable of rehabilitation.
John Hubner pointed out, “because the brain is still forming [in juvenile offenders], drug treatment,
education, vocational training, and anger management for adolescents can have a major impact”. This is
borne out in the success rates of the Giddings State School which handled the “worst of the worst” of
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juvenile violent offenders in its Capital and Serious Violent Offender Program, as previously mentioned.
Offenders who completed the program (as of 2005) had a 55 percent reduction in recidivism for any
crime and a 43 percent reduction in felonious reoffending. Only 10 percent of those offenders were
rearrested for violent offenses (Hubner, 2005). This is a substantially better rehabilitation rate than any
rate demonstrated for adult offenders. Giddings 2005 and 2010 results clearly prove the simple fact that
juvenile offenders are highly capable of rehabilitation.
This forces society to face important questions about the practicality and morality of continuing
to incarcerate a person who is reformed, not a danger to society, and who is no longer the same person
they were when they committed their crimes. Few people are the same at age 30 as they were ate age
20 and nobody is the same at age 30 as they were at age 15. In a country swimming in debt with a
population demanding more and more services from the government, society cannot afford to expend
tens of thousands of dollars each year to incarcerate people who no longer pose a threat to society.
That same money can be better spent to protect society with crime prevention programs ,community
outreach programs, and facilities that mirror Giddings. Public safety is actually served by rehabilitating
juvenile offenders and releasing them sooner than an adult offender.
If a juvenile offender is no longer a threat to society, what justification remains for incarcerating
him for as long as an adult offender would be? He no longer needs to be incapacitated to protect society
and continued incarceration no longer serves any rehabilitation purpose. Unlike with adults, the
probability of facing lengthy prison sentences does not serve as a deterrent for juvenile criminals
because of their inability to properly weigh the long term consequences of their actions. Continued
incarceration of a reformed juvenile offender has no deterrence value upon other juveniles. The only
legitimate justification for continued incarceration would be retribution. As shown above, the biological
differences between adults and juveniles demonstrate a lower degree of culpability for juveniles in their
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actions compared to adults. This weighs against the practice of continued retribution once the juvenile
offender has been rehabilitated.
An additional problem in the current juvenile justice system, aside from those previously
mentioned, is the fundamental lack of due process involved in deciding which children are punished by
the juvenile system and which are punished by the adult system. Many states give almost unbridled
discretion to district attorneys, whose occupations by nature make them part politician and have to take
considerations other than justice alone in making these decisions. This has created a situation where
two children of identical age can commit crimes with identical elements of the offense but one can be
punished with a far harsher punishment than the other simply due to the decision of one person to
move him into adult court. It is purely up to him to decide which facts outside of the elements of the
statutory crime justify a harsher punishment and whether or not those facts exist.
The solutions to these problems are not complicated nor are they radical, they simply require
society to trust the criminal justice system to make the right decision most of the time. The first step is
to trust the judges who have heard all the facts of the case, even those facts jurors didn’t hear, to make
the right choice in sentencing a juvenile offender-remove the restraints of mandatory sentences. Once a
juvenile is sentenced to prison, society must trust the parole board to only release a juvenile offender
once he has been rehabilitated. No parole board will release an insubordinate juvenile offender and
with the proper programs in place, it will be readily discernable which offenders have truly embraced
responsibility for their crimes and have taken rehabilitation seriously versus those who have not.
Sentencing schemes must be adjusted to fit the unique circumstances of juveniles who are tried
in adult court. The simplest solution would be to allow the sentencing judge to set the minimum amount
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of years a juvenile offender must serve before becoming parole eligible-a number which will not be
affected by “good time”. For instance, under Colorado law, the maximum aggravated sentence for
second degree murder is 48 years, of which an adult offender must serve 75 percent, or 36 years, before
becoming parole eligible. Simply allowing a judge to sentence a juvenile to 48 years with, say 10 years
minimum, would place the child in a position to prove himself redeemable, yet provide for just as severe
a sentence as an adult would serve if he proves to be defiant and unresponsive to treatment. It would
allow for severe punishment but also allow for release once continued incarceration is no longer
necessary. Such a sentencing scheme could also be used for life sentences. While the cases of the most
extreme juvenile murderers may be brought up as examples of why the discretion to impose lighter
sentences should not be allowed, it is unreasonable to fear that judges will disregard the gruesomeness
of a crime when setting a minimum sentence and it is unreasonable to think that a parole board would
release a Charles Manson type juvenile offender into the world. An opportunity for a lower sentence is
just that, an opportunity not a certainty.
The attractiveness of such discretion in sentencing is also found in that age can be an arbitrary
number. Is a person who commits second degree murder dramatically less culpable for his actions five
days before his eighteenth birthday than five days after? Of course not, every juvenile’s situation is
different. A severely abused seventeen year old with the maturity of a healthy fourteen year old has less
culpability than an abnormally mature fifteen year old. A child raised by gang members and taught to be
a criminal has less culpability than one raised by responsible parents. Judges need the discretion to use
such subjective factors in order to weigh both the rehabilitative potential and culpability of the juvenile
offenders who appear before them in order to set just potential minimum sentences. When it comes to
increasing the maximum sentence a juvenile is facing, however, it is inappropriate for a judge or a
district attorney to make that decision. Currently in Colorado a juvenile who commits first degree
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murder either faces up to 5 years to 40 to life is up to the sole discretion of the district attorney with his
personal biases, philosophies, and experiences. As pointed out earlier, he decides which facts justify that
increase and that those facts exist. This violates the constitution in spirit if not in letter.
The legislative branch should be the only body of government to decide which factors justify
increasing the maximum punishment for first degree murder from 5 years to 40 to life (or for any crime
from 5 years to the statutory maximum for adults). By not delineating specific factors to be considered,
the legislature has neglected its duty and has created a system which allows for inconsistent and
arbitrary application of the law. No one would seriously dispute that the district attorney for Boulder
County has used his discretion to move juveniles into adult court far differently than the district
attorney for El Paso County. Integral to any juvenile justice reform in Colorado would be for the
legislature to set forth exactly what facts, beyond the element of the crime itself, will move a juvenile
into the adult criminal justice system. This would eliminate disparate sentences for identical criminal
conduct. Following the reasoning of Justices Scalia and Thomas in Ring vs. Arizona that “the
fundamental meaning of the jury trial guarantee of the Sixth Amendment is that all facts essential to the
level of punishment that the defendant receives-whether the statue calls elements of the offense,
sentencing factors, or Mary Jane-must be found by the jury beyond a reasonable doubt” (Ring vs.
Arizona, 2002).
It is the jury’s place to decide if those facts which justify the increase in sentencing exist, not the
judge’s nor the opposing side of the adversarial system, the district attorney. Society must be able to
trust its fellow citizens to make the right decision in cases, to be able to correctly decide if the
circumstances of the crime and juvenile offender require placing the child into the adult system. If the
citizens of the nation cannot be trusted to make such decisions, that is the problem which must be
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addressed rather than not adopting reform. It should be up to a jury of citizens to hear evidence
concerning the individual characteristics of the defendant, to assess his culpability in the crime, in order
to determine the proper system of punishment for him-juvenile or adult. Only in this manner can the
system account for the individual variations among juveniles in their development, their unique
personal situations, and remove any extraneous factors in the decision such as political considerations
or bias.
Juvenile justice reform need not be complicated. Simple reforms can be made which take into
account the diminished mental capacities of juveniles and their lessened degree of culpability for their
crimes. There is a good reason that society has deemed juveniles as incapable to responsibly drink
alcohol, smoke, vote, own a handgun, purchase weapons, and drive without certain restrictions. Their
emotional and mental development is clearly far below that of adults. The criminal justice system must
account for this along with society’s failure to create a culture which discourages self-centeredness,
materialism, and crime. Not only is juvenile justice reform a moral imperative, but the reduction in
overall incarceration costs can lead to a greater society to be a member of. There is no downside to
properly implemented reform; the only question is if there is someone with the strength of personality
to create the will for reform in the halls of the legislature.
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Work Cited
Ring vs. Arizona, U.S. 584 (Supreme Court of the United States June 24, 2002).
Amnesty International; Human Rights Watch. (2005). The Rest of Their Lives: Life without Parole for Child
Offenders in the United States. New York, NY; Washington, DC; : Human Rights Watch/Amnesty
International.
Bower, B. (2004). Teen Brains on Trial: The Science of Neutral Development Tangles With the Juvenile
Death Penalty. Science News Online, 299-301.
Hubner, J. (2005). Last Cance Texas: The Redemption of Criminal Youth. New York: Random House.
Myers, D. L. (2003). Adult Crime, Adult Time: Punishing Violent Youth in the Adult Criminal Justice
System. Youth Violence and Juvenile Justice, 173-192.
Parker, A. (2005). Thrown Away: Children Sentenced to Life Without Parole In Colorado. New York, NY:
Human Rights Watch.
Texas Youth Commission. (2010). 2010 Annual Review of Agency: Treatment Effectiveness.
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