Between Rehabilitation and Punishment: America’s Approach to Juvenile Justice

Despite lowering youth incarceration rates in recent years, the United States still puts more of its children behind bars than any other similarly-developed industrialized country. Over 60,000 minors were held in youth detention centers in 2011, while around 95,000 children were tried as adults and sent to adult jails and prisons [1]. Studies on Finland, Japan, and Sweden show that these countries incarcerate almost no minors [2]. Differences in crime statistics do not explain this dramatic contrast, as U.S. rates of juvenile violent crimes are only marginally higher than those in the aforementioned nations [3]. So why does America stand out among other liberal democracies with respect to its treatment of minors disobeying the law? In this article, I will explore two key reasons behind America’s punitive stance on juvenile offenses. First, the presence of law enforcement officials looms large in American public schools. Zero-tolerance discipline policies and other stringent practices have given rise to a phenomenon known as the “school-to-prison pipeline.” Second, the majority of states in the U.S. have laws that allow juveniles to be tried as adults and facilitate the transfer of young offenders to criminal prosecution. In my article, I will also acknowledge the considerable progress that has recently been made in reducing juvenile confinement and propose ways to further solidify these positive developments.

The school-to-prison pipeline is an unfortunate reality for many students attending public schools in socio-economically disadvantaged parts of the U.S. This term captures various policies and practices that contribute to the trend of funneling children, primarily those from marginalized communities, out of the public education system and into the criminal justice system [4]. The pipeline is fueled by zero-tolerance policies, punitive disciplinary measures, and increased police presence in schools. These measures could partly be viewed as a misguided response to gun violence. Zero-tolerance policies have originated with the 1994 Gun-Free Schools Act (GFSA) [5]. After a series of school shooting massacres that shocked the nation, Congress passed GFSA which required educational agencies to expel, for a minimum of one year, any student who brought a firearm to school. Since 1994, school districts have mandated harsh punishment for less serious offenses in an effort to deter crime. These policies reshaped the landscape of how students are disciplined, increasing reporting to law enforcement.

The “youth superpredator myth” serves as an additional explanation for the growing linkages between education and police. Criminologist John J. Dilulio, Jr., a former professor at Princeton University, coined the term “superpredator,” cautioning the American public that young people would flood the streets of the United States in the mid-1990s and terrorize the population [6]. He described these future offenders as “kids that have absolutely no respect for human life and no sense of the future.”[7] In a book stating their theory of moral poverty, Dilulio and co-authors added that these young people are “fatherless, Godless, and jobless” and “radically impulsive, brutally remorseless youngsters, [...] who murder, assault, rob, burglarize, deal deadly drugs, and join gun-toting gangs.”[8] The superpredator myth gained more attention after being linked to predictions by Harvard political scientist James Q. Wilson of increased levels of juvenile violence. Wilson forecasted that by the year 2000 “there will be a million more people between the ages of 14 and 17 than there are now. . . . Six percent of them will become high rate, repeat offenders — thirty thousand more young muggers, killers and thieves than we have now.”[9] DiIulio reached a similar conclusion, basing his predictions on the Philadelphia Birth Cohort Study, which found that six percent of boys were responsible for over half the serious crimes committed by the whole group in the study [10]. He contended that these chronic offenders are the product of a lack of “loving, capable, responsible adults who teach you right from wrong.”[11] The deeply racialized undertones of the superpredator myth shaped subsequent policies aimed at controlling crime.

In response to worries about gun violence in schools and the looming threat of young “superpredators,” public schools introduced school resource officers (SROs), which are sworn law enforcement professionals with the power to arrest students. Tasked with the mission to ensure student safety and prevent crime, about 91 percent of SROs are armed and most carry restraints like handcuffs [12]. Given their expanded powers, there have been debates about the exact legal status of SROs. Generally, school officials benefit from special exemptions due to schools’ need for discipline. In 1985, the U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a police warrant and simply on grounds of reasonable suspicion, rather than the usual standard of probable cause [13]. This decision belongs to a body of Fourth Amendment rulings pertaining to special needs searches that extend “beyond the normal need for law enforcement.”[14] However, this case did not clarify the mandate of school resource officers relative to regular school officials [15]. In the 1990s and 2000s, most state courts that addressed this issue maintained that the SROs ought to benefit from the same lax conditions as school officials, thus differentiating SROs from police officers. This gave SROs free rein to undertake law enforcement activities under the formal status of school disciplinarians. A report funded by the U.S. Department of Justice (DOJ) on SRO activities revealed that SROs were “arresting, citing, or turning in students to school administrators.”[16] The report adds that the children receiving this treatment were not “delinquents” but “troublemakers.”[17] According to one scholar, “the introduction of law enforcement officers into schools has transformed student misconduct into a matter to be dealt with by the criminal justice system.”[18]

The increased involvement of SROs in mediating school conflicts, along with other unfavorable policies, led to a significant rise in student arrests, primarily among people of color. SROs became involved in school misbehavior, such as fights, that school officials would have tackled in previous generations. Simultaneously, states and school districts passed laws that required student misbehavior to be reported to law enforcement. Forty-three states require school districts to refer students to law enforcement for several school policy violations, most of which would not be classified as criminal offenses if they were committed by adults [19].

During the 2015-16 academic year, approximately 290,600 students were referred to law enforcement agencies or arrested [20]. While only 15% of students were Black or African American, these students made up 31% of law enforcement referrals and arrests [21]. On the other hand, white students accounted for 36% of law enforcement referrals and arrests, whereas 49% of the overall student population was white [22]. The legal scholar Josh Kupta-Kagan notes that “schools became a primary source of delinquency cases referred to juvenile court. The proportion of all juvenile charges arising from incidents at school was found to be 17 percent nationally and significantly higher in some jurisdictions.”[23] Multiple studies found that children who were arrested were significantly harmed, even though their cases did not end up in juvenile courts [24].

In addition to a rise in arrests and juvenile court adjudications, the shift towards a strict response to disturbances of school activities increased the number of suspensions from school. During the 2015-16 school year, Black male students represented 25% of out-of-school suspensions and Black female students made up 14% of temporary exclusions from school [25]. This demographic comprises only eight percent of both the male and female total student population, which implies that the enforcement of out-of-school suspensions has had a disproportionate impact on Black students [26]. The negative effects of suspensions on subsequent life outcomes are well-documented. According to a longitudinal study by the Center for Court Innovation of New York City, an initial school suspension increased students’ likelihood of being arrested later in life, as well as the probability of failing to advance to the next grade or graduating [27]. Furthermore, students who were Black, Hispanic, disabled, or poor were more likely to become involved in the justice system once facing disciplinary action [28].

The other main reason behind America’s high rates of juvenile incarceration relates to the legal functioning of its juvenile justice system and the transfer of certain youth offenders to the criminal justice system. After a long period of an emphasis on rehabilitation, in the 1970s, courts began to prescribe that juvenile offenders be held accountable for their crimes in a similar manner as adult offenders. Courts started to use “backward-looking factors in determining sentences, specifically the nature and perceived heinousness of the crime, and the record of the convicted offender.”[29] Moreover, all states began to allow certain juveniles to be tried in criminal courts, or be otherwise subject to adult sanctions [30]. Between 1992 and 1997, 47 states adopted stringent laws that broadened eligibility for criminal court processing and adult correctional penalties [31]. More specifically, 45 states enacted laws that reduced the upper bound of the age range falling under juvenile court jurisdiction, thus facilitating the transfer of juveniles from the juvenile justice system to the criminal justice system [32]. Furthermore, 31 states passed laws that expanded the range of penalties available to criminal and juvenile courts. Additional laws such as “once an adult, always an adult” provisions have contributed to the massive incarceration of young people [33]. In 35 states, “2019 statutes require that juveniles who have been tried as adults must be prosecuted in criminal court for any subsequent offenses.”[34] These measures highlight that the agenda of many state legislatures was to crack down on juvenile crime, despite substantial misperception of the exact rates of juvenile offending.

Nonetheless, it is important to note that in the 2000s, the pendulum has slowly returned to rehabilitation instead of punishment. The U.S. Supreme Court recognized what organizations like the American Psychological Association and the American Academy of Child Adolescent Psychiatry had been arguing for years — minors are different from adults [35]. Research on adolescent development empirically proved that adolescents are more likely to make impulsive decisions and less able to consider the consequences of their actions. Most importantly, insights from psychology and neuroscience indicated that minors are more responsive to rehabilitative efforts. In 2005, the U.S. Supreme Court referenced scientific findings of adolescent brain development in its Roper v. Simmons decision that prohibited the application of the death penalty to those younger than 18 years old [36]. Consequently, some states have reversed their legislation back to being more lenient, including “roll-backs of at least some transfer provisions to keep more youth out of criminal court.”[37] For example, in 2016, California removed its provision that had previously allowed prosecutors to file certain offenses directly in criminal court. New Jersey increased the minimum age for transfer to criminal court from 14 to 15 years old.

As a result of this gradual shift, there has been a decline in youth confinement rates. Starting with 1975, confinement steadily increased, from 241 per 100,000 youth being confined to 381 in 1995, when a total of 107,637 minors were held in various facilities, as reported in the Census of Juveniles in Residential Placement survey [38]. However, beginning in 1997, these rates began to drop. The annual rate of deinstitutionalization tripled, resulting in a juvenile confinement rate of 196 per 100,000 youth in 2011 [39]. Overall, juvenile confinement rates have fallen by 49 percent since 1995. Former director of the Juvenile Detention Alternatives Initiative, Bart Lubow notes, “this juvenile confinement trend, noteworthy in a nation that increased its adult incarceration rate by approximately 500 percent over the past four decades, has occurred in virtually all states.”[40]

Despite this downward trend in the incarceration of young people, we should not come to the conclusion that the number of young people who are currently confined is optimal. Only one quarter of youth in custody are locked up for a violent offense, while 40 percent are incarcerated for arguably minor offenses such as probation violations and misdemeanors [41]. Thus, we still need concrete system improvements that will enshrine the use of diversion and community-based programs into law across the United States. Weekly detention reviews ought to be performed to minimize the duration of stay in juvenile detention centers. Furthermore, juvenile justice institutions need to implement objective screening methods to improve admissions decisions. These proposals would create a permanent “infrastructure [that] can sustain often-fragile reform ambitions and ensure they survive leadership transitions and predictable challenges (such as an inevitable uptick in juvenile crime).”[42]

Bibliography

1. “World Report 2016: Rights Trends in Children behind Bars,” Human Rights Watch, April 13, 2016, https://www.hrw.org/world-report/2016/country-chapters/africa-americas-asia-europe/central-asia-middle-east/north.

2. Lubow, Bart. 2020. “A Silent Sea Change.” In A New Juvenile Justice System, 6:47–62. New York, USA: New York University Press. https://doi.org/10.18574/9781479800308-005

3. Lubow, Bart. “A Silent Sea Change.”

4. “The School-to-Prison Pipeline,” Harvard Civil Rights-Civil Liberties Law Review, accessed April 28, 2023, https://harvardcrcl.org/the-school-to-prison-pipeline/.

5. Who Is Most Affected by the School-to-Prison Pipeline,” School of Education Online, November 8, 2022, https://soeonline.american.edu/blog/school-to-prison-pipeline/#:~:text=How%20Many%20Students%20Do%20Law,law%20enforcement%20referrals%20and%20arrests.

6. John DiLulio, “The Coming of the Super -- Predators,” Washington Examiner (Washington Examiner, January 20, 2010), https://www.washingtonexaminer.com/weekly-standard/the-coming-of-the-super-predators.

7. Ibid.

8. William J. Bennett, John J. DiIulio, and John P. Walters, Body Count: Moral Poverty, and How to Win America's War Against Crime and Drugs (New York: Simon and Schuster, 1996), 27.

9. James Q. Wilson and Joan Petersilia, Crime (ICS, 1995), 507.

10. “Superpredators and Other Myths about Juvenile Delinquency,” Preventing and Reducing Juvenile Delinquency: A Comprehensive Framework, 2009, pp. 3-16, https://doi.org/10.4135/9781452274980.n1.

11. DiLulio, “The Coming of the Super -- Predators.”

12. Stephen Sawchuk, “School Resource Officers (Sros), Explained,” Education Week (Education Week, June 29, 2022), https://www.edweek.org/leadership/school-resource-officer-sro-duties-effectiveness.

13. New Jersey v. T. L. O., 469 U.S. 325 (1985).

14. 469 U.S. 325 (1985).

15. Josh Gupta-Kagan, Reevaluating School Searches Following School-to-Prison Pipeline Reforms, 87 Fordham L. Rev. 2013 (2019). Available at: https://ir.lawnet.fordham.edu/flr/vol87/iss5/10

16. Peter Finn et al., “Comparison Of Program Activities And Lessons Learned Among 19 School Resource Officer (SRO) Programs” (2005).

17. Ibid.

18. Ben Brown, “Understanding and Assessing School Police Officers: A Conceptual and Methodological Comment,” Journal of Criminal Justice 34, no. 6 (2006): pp. 591-604, https://doi.org/10.1016/j.jcrimjus.2006.09.013.

19. Brian J. Fahey, A Legal-Conceptual Framework for the School-to-Prison Pipeline: Fewer Opportunities for Rehabilitation for Public School Students, 94 Neb. L. Rev. 764 (2015) Available at: https://digitalcommons.unl.edu/nlr/vol94/iss3/7

20. “Who Is Most Affected by the School-to-Prison Pipeline,” School of Education Online, November 8, 2022, https://soeonline.american.edu/blog/school-to-prison-pipeline/#:~:text=How%20Many%20Students%20Do%20Law,law%20enforcement%20referrals%20and%20arrests.

21. Ibid.

22. Ibid.

23. Josh Gupta-Kagan, Reevaluating School Searches Following School-to-Prison Pipeline Reforms, 87 Fordham L. Rev. 2013 (2019). Available at: https://ir.lawnet.fordham.edu/flr/vol87/iss5/10

24. Kaitlin Banner, Breaking The School-To-Prison Pipeline: New Models For School Discipline And Community Accountable Schools, In A New Juvenile Justice System: Total Reform For A Broken System 301, 301–02 (Nancy E. Dowd Ed., 2015).

25. “Who Is Most Affected by the School-to-Prison Pipeline,” School of Education Online, November 8, 2022, https://soeonline.american.edu/blog/school-to-prison-pipeline/#:~:text=How%20Many%20Students%20Do%20Law,law%20enforcement%20referrals%20and%20arrests.

26. Ibid.

27. “School Discipline, Safety, and Climate: A Comprehensive Study in New York City,” (2019), L. Ayoub, E. Jensen, T. Sandwick, D. Kralstein, J. Wonsun Hahn, and E. White, Center for Court Innovations.

28. Ibid.

29. Brian J. Fahey, A Legal-Conceptual Framework for the School-to-Prison Pipeline: Fewer Opportunities for Rehabilitation for Public School Students, 94 Neb. L. Rev. 764 (2015) Available at: https://digitalcommons.unl.edu/nlr/vol94/iss3/7

30. Puzzanchera, Charles, Hockenberry, Sarah, and Sickmund, Melissa. 2022. Youth and the Juvenile Justice System: 2022 National Report. Pittsburgh, PA: National Center for Juvenile Justice.

31. Ibid.

32. Ibid.

33. Ibid.

34. Ibid.

35. David L. Hudson, “Law Review: Psychological Research, Juvenile Justice, and the Need for More Reform,” Americanbar.org, accessed April 28, 2023, https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-18/insights-issue-2---vol-18/law-review-psychological-research--juvenile-justice--and-the-/.

36. Kennedy, Anthony M, and Supreme Court Of The United States. U.S. Reports: Roper v. Simmons, 543 U.S. 551. 2004. Periodical. https://www.loc.gov/item/usrep543551/.

37. Puzzanchera, Charles, Hockenberry, Sarah, and Sickmund, Melissa. Youth and the Juvenile Justice System.

38. Lubow, Bart. “A Silent Sea Change.”

39. Puzzanchera, Charles, Hockenberry, Sarah, and Sickmund, Melissa. Youth and the Juvenile Justice System.

40. Ibid, 49.

41. Ibid.

42. Ibid, 60.