Shawn Marie Boyne† | 3 Regent J. Glob. Just. & Pub. Pol. 177
Treatment of children, who are victims of the conditions in which they are living and children who have violated the law, is a reflection of a society’s culture and value system.
Josine Junger-Tas1
INTRODUCTION
Until the U.S. Supreme Court’s 2005 decision in Roper v. Simmons, it was still lawful to sentence a juvenile defendant to death in twenty American states.2 In holding that the juvenile death penalty violates the Eighth Amendment, the Court questioned whether the main justifications that support the use of the death penalty in cases involving adult offenders, namely deterrence and retribution, can be achieved through the execution of juvenile offenders.3 Specifically, Justice Kennedy argued that the case for achieving the goal of retribution was weakened by the fact that their moral culpability was “diminished, to a substantial degree, by reason of youth and immaturity.” 4 With respect to the potential deterrent effect of the death penalty, the majority questioned whether juveniles would be “susceptible to deterrence” given juveniles’ diminished culpability and ability to think through the consequences of their actions.5
Despite the “progress” represented by the Roper decision, the United States continues to punish juvenile offenders more harshly than the rest of the world.6 Following the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama, a number of states have abolished the sentence of life without parole for juvenile offenders. 7 Still the United States remains an outlier.
Although American courts impose juvenile sentences up to and including life imprisonment, according to research conducted by David A. Shapiro, at least forty countries around the world limit the maximum sentence imposed on juvenile offenders to ten years.8 At the far end, twelve countries have a maximum juvenile sentence of twenty-years imprisonment.9
To explain the harsh treatment of juvenile offenders in the United States, scholars have typically identified a number of factors including: public support for punishment, cultural attitudes towards punishment, and rates of violent crime. Specifically, beginning in the 1990s, politicians substantially stiffened penal sanctions in juvenile cases riding a renewed wave of interest in the philosophy of individual responsibility and accountability. These changes paralleled a nearly 80% increase in violent crime related arrests of juveniles 17-years-old or younger that occurred between 1985 and 1995.10 Consistent with this shift in sentencing philosophy, between 1992 and 1997, forty-seven states changed their sanctioning policies by expanding the sentencing options available to judges, increasing the severity of juvenile sanctions, and creating procedures to permit prosecutors to transfer juveniles to adult court.11 Due to these changing political winds, juvenile incarceration rates rose dramatically during that same time period 12 and more juveniles were tried and sentenced as adults.13 According to Jeffrey Butts’ 1997 study, public fear of juvenile crime and distrust in juvenile justice led to a 71 percent increase between in youths waived into adult court between 1985 and 1994.14
The most noticeable effect of that waiver is that, in many states, juvenile offenders may receive life without parole sentences.15 Although the Supreme Court’s decisions in Graham v. Florida16 and Miller v. Alabama17 led some states to eliminate that harsh sentencing option altogether,18 juvenile offenders in Delaware, Iowa, Louisiana, Michigan, Nebraska and Washington may still receive a sentence of life without parole as a possible sentence for certain offenses.19
† Professor of Law, Indiana University Robert H. McKinney School of Law. Professor Boyne holds a B.A. cum laude, Cornell University; M.B.A. University of Minnesota; J.D. University of Southern California Gould School of Law; L.L.M. Justus-Liebig Universität, and a Ph.D. University of Wisconsin-Madison. Parts of this article previously appeared in Chapter Eight of SHAWN M ARIE BOYNE , THE GERMAN PROSECUTION SERVICE : GUARDIANS OF THE LAW ? (Springer-Verlag Berlin Heidelberg, 2014). Republished with permission.
1 Josine Junger-Tas, Trends in International Juvenile Justice: What Conclusions Can be Drawn?, in INTERNATIONAL HANDBOOK OF JUVENILE JUSTICE 505, 505 (J. Junger-Tas & S.H. Decker eds., 2006).
2 543 U.S. 551, 564 (2005) (noting that at the time of the decisions 30 states prohibited the use of the juvenile death penalty).
3 Id. at 570–71.
4 Id. at 571.
5 Id. at 571–72.
6 See Barry Krisberg, Rediscovering the Juvenile Justice Ideal in the United States, in COMPARATIVE Y OUTH J USTICE 6 (John Muncie & Barry Goldson eds., 2006).
7 Cara H. Drinan, Juvenile Justice in America: We Can Do Better, HUFFINGTON POST (June 13, 2015), http://www.huffingtonpost.com/cara-h-drinan/juvenile-justice-in-ameri_b_7054254.html (stating that Delaware, Hawaii, Massachusetts, Texas, West Virginia and Wyoming have abolished the practice of juvenile life without parole, while other states have precluded the sentence for certain categories of juveniles).
8 David A. Shapiro, What’s Beneath the Graham Cracker?: The Potential Impact of Comparative Law on the Future of Juvenile Justice Reform After Graham v. Florida, 24 PACE INT’L L. REV . 119, 139–40, 156 (2012).
9 Id. at 140.
10 Arrests for Violent Crimes by Age, 1970–2003, U.S. Dep’t of Justice (2004), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=2028 (issuing FBI Uniform Crime Reports).
11 See e.g., Junger-Tas, supra note 1, at 511; P ANEL ON J UVENILE CRIME: PREVENTION, TREATMENT, AND CONTROL, JUVENILE CRIME, JUVENILE JUSTICE 5 (Joan McCord et al. eds., 2001).
12 Malcolm W. Klein, Thoughts on Juvenile Justice Systems and Research, 9 EUR. J. CRIM. POL’Y & RES. 273, 275 (2001).
13 Office of Juvenile Justice and Delinquency Prevention, Young Offenders: What Happens and What Should Happen, NATIONAL INSTITUTE OF JUSTICE 2 (2014), https://www.ncjrs.gov/pdffiles1/nij/242653.pdf.
14 JEFFREY BUTTS, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, DELINQUENCY CASES WAIVED T O CRIMINAL COURT, 1985–1994 (1997); see also Shelly S. Schaefer & Christopher Uggen, Blended Sentencing Laws and the Punitive Turn in Juvenile Justice, 41 L AW & S OC . INQUIRY 435, 436 (2016).
15 Juvenile Justice: Rethinking Punitive Approaches to Addressing Juvenile Crimes, DEVELOPMENTS (UNIV . P ITT. OFF. DEV .), Jan. 2009, 6, 7, http://www.ocd.pitt.edu/Files/PDF/dev2009-01.pdf. In some states, waivers are no longer required for juveniles who commit certain types of offenses or have reached a certain age. Prosecutors may file these cases directly into adult criminal courts. See Patrick Griffin et al., Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting, OFF. JUV. & DELINQ. PREVENTION, Sept. 2011, 1, 9–10, https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf.
16 560 U.S. 48, 82 (2010) (holding that it is unconstitutional to sentence someone to life in prison without the possibility of parole for a non-homicide crime committed under the age of 18).
17 565 S. Ct. 2455, 2468–69 (2012) (holding that judges must consider a number of factors before sentencing a juvenile to life without parole including the defendant’s immaturity; family and home environment; family and peer pressures; an “inability to deal with police officers or prosecutors” or their own attorney; and “the possibility of rehabilitation”).
18 See Sarah Alice Brown, Trends in Juvenile Justice: State Legislation 2011-2015, NAT’L CONF. OF ST. LEGISLATURES 3 (2015), http://www.ncsl.org/documents/cj/Juvenile_Justice_Trends_1.pdf (noting those states include: California, Hawaii, Massachusetts, Nevada, Texas, Utah, Vermont, West Virginia and Wyoming).
19 Id.