Law Commons^™

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 Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan

Faculty Scholarship

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old. The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles was …

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 …

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 …

Determinants Of Judicial Waiver Decisions For Violent Juvenile Offenders, Jeffrey Fagan, Elizabeth Piper Deschens

Faculty Scholarship

The selection of jurisdiction for adjudicating juvenile crime today is one of the most controversial debates in crime control policy, reflecting differences in assumptions about the causes of crime and philosophies of jurisprudence and punishment. For adolescent offenders, especially violent youth whose behaviors may pose particular social danger, critics view the traditional goals of the juvenile court and the "best interests of the child" standard as being at odds with public concerns for retribution and incapacitation of criminals. The choice between jurisdictions is a choice between the nominally rehabilitative dispositions of the juvenile court and the explicitly punitive dispositions of …