Law Commons^™

Restating The Law In A Child Wellbeing Framework, Elizabeth S. Scott

Faculty Scholarship

The Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law’s treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, …

Confronting Indeterminacy And Bias In Child Protection Law, Joshua Gupta-Kagan

Faculty Scholarship

The child protection legal system faces strong and growing demands for change following at least two critiques. First, child protection law is substantively indeterminate; it does not precisely prescribe when state agencies can intervene in family life and what that intervention should entail, thus granting wide discretion to child protection agencies and family courts. Second, by granting such discretion, the law permits race, class, sex, and other forms of bias to infect decisions and regulate low-income families and families of color.

This Article extends these critiques through a granular analysis of how indeterminacy at multiple decision points builds on itself. …

Beyond "Children Are Different": The Revolution In Juvenile Intake And Sentencing, Joshua Gupta-Kagan

Faculty Scholarship

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases — when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can …

The New Restatement Of Children And The Law: Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

This Essay is based on a previous article: Clare Huntington & Elizabeth Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 Mich. L. Rev. 1371 (2020) (offering a comprehensive account of the Child Wellbeing framework).

Since the 1960s, the law regulating children has become increasingly complex and uncertain. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children subject to a limited supervisory and protective role of the state, has broken down. Lawmakers have begun to grant children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, …

Rethinking Family-Court Prosecutors: Elected And Agency Prosecutors And Prosecutorial Discretion In Juvenile Delinquency And Child Protection Cases, Joshua Gupta-Kagan

Faculty Scholarship

Like criminal prosecutors, family-court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the 1990s shift to prosecute (rather than dismiss or divert) about 10 percent more delinquency cases annually is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family-court prosecutors’ authority in much depth.

This Article shows how family-court prosecutors’ roles have never been fully …

How Should Justice Policy Treat Young Offenders?: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, Bj Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer E. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner

Faculty Scholarship

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan

Faculty Scholarship

In October 2015, a Black teenager at Spring Valley High School in Columbia, South Carolina had her cell phone out in her math class. Her teacher told her repeatedly to put it away. Repeatedly she refused. The teacher then called a school administrator, who similarly instructed her to put away her phone. The student continued to refuse. The administrator then called the school resource officer (“SRO”), the uniformed, armed deputy sheriff assigned to the school. The SRO came and informed the student that she had to put away her cell phone. When the student again refused, the officer arrested her …

Justice Policy Reform For High-Risk Juveniles: Using Science To Achieve Large-Scale Crime Reduction, Jennifer L. Skeem, Elizabeth S. Scott, Edward Mulvey

Faculty Scholarship

After a distinctly punitive era, a period of remarkable reform in juvenile crime regulation has begun. Practical urgency has fueled interest in both crime reduction and research on the prediction and malleability of criminal behavior. In this rapidly changing context, high-risk youth – the small proportion of the population where crime is concentrated – present a conundrum. Research indicates that these are precisely the individuals to intensively treat to maximize crime reduction, but there are both real and imagined barriers to doing so. Institutional placement or criminal court processing can exclude these youths from interventions that would better protect public …

Where The Judiciary Prosecutes In Front Of Itself: Missouri's Unconstitutional Juvenile Court Structure, Joshua Gupta-Kagan

Faculty Scholarship

This Article will address several issues raised by Missouri’s unusual juvenile court structure, arguing that the structure violates the Missouri Constitution’s separation of powers clauses by placing prosecutorial discretion with-in the judicial branch. By granting juvenile officers, who are subject to judges’ supervision, exclusive power to file child abuse and neglect and juvenile delinquency cases, Missouri law concentrates power into the hands of one branch of government. Missouri law thus empowers individual judges to set child welfare and juvenile justice policy by managerial decree. Subordinate judicial branch officials face pressure to file and litigate cases to please their boss, the …

Adolescent Development And The Regulation Of Youth Crime, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Elizabeth Scott and Laurence Steinberg explore the dramatic changes in the law’s conception of young offenders between the end of the nineteenth century and the beginning of the twenty-first. At the dawn of the juvenile court era, they note, most youths were tried and punished as if they were adults. Early juvenile court reformers argued strongly against such a view, believing that the justice system should offer young offenders treatment that would cure them of their antisocial ways. That rehabilitative model of juvenile justice held sway until a sharp upswing in youth violence at the end of the twentieth century …

Juvenile Crime And Criminal Justice: Resolving Border Disputes, Jeffrey Fagan

Faculty Scholarship

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime.

The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the compet­ing interests of public safety and …

Introduction: The Challenge Of Lionel Tate, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Legal reforms over the past generation have transformed juvenile crime regulation from a system that viewed most youth crime as the product of immaturity into one that is ready to hold many youths to the standard of accountability imposed on adults. Supporters of these reforms argue that they are simply a response to the inability of the traditional juvenile court to deal adequately with violent youth crime, but the legal changes that have transformed the system have often been undertaken in an atmosphere of moral panic, with little deliberation about consequences and costs.

In this book we argue that a …

Disparity Rules, Olatunde C.A. Johnson

Faculty Scholarship

In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination orjustified by "legitimate" agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage.

This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial …

Public Preferences For Rehabilitation Versus Incarceration Of Juvenile Offenders: Evidence From A Contingent Valuation Survey, Daniel S. Nagin, Alex R. Piquero, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Research Summary:
Accurately gauging the public's support for alternative responses to juvenile offending is important, because policy makers often justify expenditures for punitive juvenile justice reforms on the basis of popular demand for tougher policies. In this study, we assess public support for both punitively and nonpunitively oriented juvenile justice policies by measuring respondents' willingness to pay for various policy proposals. We employ a methodology known as "contingent valuation" (CV) that permits the comparison of respondents' willingness to pay (WTP) for competing policy alternatives. Specifically, we compare CV-based estimates for the public's WTP for two distinctively different responses to serious …

Developmental Incompetence, Due Process, And Juvenile Justice Policy, Elizabeth S. Scott, Thomas Grisso

Faculty Scholarship

In 2003, the Florida District Court of Appeal reversed the murder conviction and life sentence imposed on Lionel Tate, who was twelve years old when he killed his six-year-old neighbor. Since Lionel was reported to be the youngest person in modern times to be sent to prison for life, the case had generated considerable debate, and the decision was appealed on several grounds. What persuaded the appellate court that the conviction could not stand, however, was the trial court's rejection of a petition by Lionel's attorney for an evaluation of his client's competence to assist counsel and to make a …

Reappraising T.L.O.'S Special Needs Doctrine In An Era Of School-Law Enforcement Entanglement, Joshua Gupta-Kagan

Faculty Scholarship

This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the nearly twenty-year old case, New Jersey v. T.L.O. to most school searches. T.L.O. established a lower standard for searches of students by school officials, but it explicitly did not decide what standard the government must meet to justify school searches performed by police officers, creating a doctrinal starting point for advocates to raise challenges to searches involving police. More fundamentally, the T.L.O. Court based its decision on the presumption that firm gates separate public school …

Punishment, Proportionality, And Jurisdictional Transfer Of Adolescent Offenders: A Test Of The Leniency Gap Hypothesis, Aaron Kupchik, Jeffrey A. Fagan, Akiva Liberman

Faculty Scholarship

In the past two decades, nearly every state has expanded its authority and simplified its procedures to transfer adolescent offenders from juvenile to criminal (adult) courts. As a result, the use of jurisdictional transfer has grown steadily. These developments reflect popular and political concerns that punishment in juvenile courts is too lenient for serious crimes committed by adolescents. Yet there is mixed evidence that expanded transfer authority has produced more certain or severe punishments for adolescents prosecuted in criminal courts. Some empirical studies show that adolescents transferred to criminal court are more likely to be convicted, sentenced to prison, and …

This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan

Faculty Scholarship

What happens to adolescents once placed in the criminal justice system and the potential violations of human rights that ensue is the focus of this essay. The pace of change, the severity of the new laws, the potential for unintended negative outcomes, and the empirical reality of adult punishment of juvenile offenders creates new urgency to these questions. Unfortunately, there has been little analysis of the comparative effects of statutes and administrative laws that relocate juvenile offenders to the adult court, and there has been virtually no research on the efficacy, impact and consequences of sentencing juveniles as adults. There …

Punishment Or Treatment For Adolescent Offenders: Therapeutic Integrity And The Paradoxical Effects Of Punishment, Jeffrey A. Fagan

Faculty Scholarship

Throughout much of its history, the American juvenile court maintained a goal of rehabilitation of the individual, and placed custody and punishment as secondary or ancillary goals in the pursuit of "remaking the child's character and lifestyle." To its founders, the development of a separate juvenile court reflected a fundamental distinction between sanctions based on characteristics of the offender, and punishment based on the offense. Juvenile court dispositions were designed to determine why the child was in court, and what could be done to avoid future appearances. Judge Julian Mack's classic statement of the original theory of the juvenile court …