You've come a long way, baby: Two waves of juvenile justice reforms as seen from Jena, Louisiana

Harvard Civil Rights-Civil Liberties Law Review

Volumn 44, Issue 2, 2009, Pages 511-545

  Beale, Sara Sun ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 70049090738     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (319)

1. See, e.g., Andrew E. Taslitz & Carol Steiker, Introduction to the Symposium: The Jena Six, the Prosecutorial Conscience, and the Dead Hand of History, 44 Harv. C.R.-C.L. L. Rev. 275, 279-283 (2009).
2. See Reed Walters, Op-Ed. Justice in Jena, N.Y. Times, Sept. 26, 2007, at A27 (stating that he would take the same actions but would better explain several points: the nooses on the tree did not constitute a crime under state law; the facts revealed a brutal beating rather than a schoolyard fight; there was serious harm inflicted with a dangerous weapon; and adult charging status for one particular defendant was appropriate because of his role as the instigator, his prior criminal record, and the seriousness of the crime).
3. See infra note 21 and accompanying text (describing the removal of the trial judge because his inflammatory comments about the defendants created an appearance of impropriety).
4. See, e.g., Ellen S. Podgor, Race-ing Prosecutor's Ethics Codes, 44 Harv. C.R.-C.L. L. Rev. 461, 467-469 (2009) (criticizing Walters for disparate charging decisions for black and white students in the Jena Six case);
5. Andrew E. Taslitz, Judging Jena's D.A.: The Prosecutor and Racial Esteem, 44 Harv. C.R.-C.L. L. Rev. 393, 456-459 (2009) (criticizing Walters for failing to consider the racial impact of his charging decisions in the Jena Six case);
6. Scott Farwell, Marching Behind Six Young Men: Concern for Black Defendants in Louisiana Fills Texas Buses, Dallas Morning News, Sept. 20, 2007, at 1A (describing 1,000 protesters leaving Texas for civil rights protest in Jena and noting that some see the Jena Six case as "a symptom of a diseased American legal system, in which laws are colorblind but lawyers and judges and juries see the world through prisms of racial bias");
7. Richard Fausset, Protesters March to Support 'Jena Six', L.A. TIMES, Sept. 21, 2007, at A-l (describing crowd of up to 50,000 protestors in Jena and speakers "describing the case as an example of an American justice system that continued to treat African Americans unfairly");
8. Leonard Pitts, 5/(7/ No Justice in 'Black Justice': Black People Continue to Receive Starkly Unequal Treatment, CHARLOTTE OBSERVER, Sept. 20, 2007, at 13A (noting historic use of criminal justice system to intimidate blacks and comparing modern cases of "unjust justice," such as the prosecution of the Jena Six, Genarlow Wilson, and Marcus Dixon);
9. Peter Whoriskey, Thousands Protest Blacks' Treatment: Six Students Who Were Prosecuted in Louisiana Town Garner Nationwide Support, WASH. POST, Sept. 21, 2007, at Al (describing marches and demonstrations in Jena and cities throughout the country to protest both the overzealous prosecution of the Jena Six as well as "unequal treatment black people receive from the criminal justice system everywhere").
10. But See eg. WKLY. STANDARD, Jan.21,2008. at 20 (arguing that professional activists and some journalists promoted very distorted accounts of the events concerning the Jena Six to present it as a symbol of racial injustice)
11. Raquel Christie, Double Whammy, Editorial, AM. JOURNALISM REV., Feb.-Mar. 2008, at 18, 22-23 (concluding that national media came late to the Jena Six story and failed to report important information, including Mychal Bell's prior record and the seriousness of Justin Barker's injuries).
12. A second confrontation involving Bailey occurred the next day. Accounts of the event differ. Bailey and some of his friends reportedly wrestled a shotgun away from Matthew Windham, 18, who had grabbed it from his truck and threatened them with it. Windham says that the youths beat him and stole the shotgun. Only Bailey was charged with theft of a firearm, second degree robbery, and disturbing the peace. John Barr & Nicole Noren, 'Jena Six' Controversy Swirls Around Football Star, ESPN, Sept. 21, 2007, http://sports.espn.go. com/espn/news/story?id=3030458 (last visited Apr. 3, 2009);
13. See also Howard Witt, Racial Demons Rear Heads, CHI. TRIB., at(describing incident in which a young white man pulled a shotgun on three black students at a convenience store and was not charged in the incident).
14. In a later incident, Barker was arrested for bringing a loaded rifle to the parking lot of Jena High. Witt, supra note 5 (describing arrest and noting that Barker told police he had forgotten the gun was there).
15. Witt, supra note 5 (stating that Barker "was not seriously injured and spent only a few hours in the hospital");
16. Whoriskey, supra note 4 (stating that Barker was knocked unconscious but released after treatment and attended the class ring ceremony the same evening);
17. Victim in Jena Six Case Takes the Stand, KATC.com, July 2, 2007, http://www.katc.com/Global/story. asp?S=6719374 (stating that Barker testified that he attended class ring ceremony the night of the beating, despite a swollen face and temporary blindness in one eye that lasted three weeks).
18. See Walters, supra note 2;
19. see also Christie, supra note 4, at 23 (noting that many accounts seemed to minimize Barker's injuries and did not mention his medical expenses).
20. Howard Witt, Charge Reduced in 'Jena 6' Case, Chi. Trib., June 26, 2007, at 4 (describing initial charges and potential penalties).
21. See infra notes accompanying Part III.B.
22. See Walters supra note 2.
23. See Witt, supra note 9 (describing last minute reduction in the charges against Bell and also stating that D.A. Walters offered Bell a plea agreement to a felony with a suspended sentence that Bell and his family rejected).
24. Second degree aggravated battery is punishable by a maximum term of fifteen years, imprisonment with or without hard labor, and punishment for conspiracy carries a maximum of one-half of that provided for the object offense. See La. Rev. Stat. Ann. § 14:34.7B (2007) (aggravated second degree battery); 14:26C (2007) (conspiracy).
25. 14 See La. Rev. Stat. Ann.§ 14:34.7A(1) (2007) (defining aggravated second degree battery as "a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury").
26. Howard Witt, 'Jena 6' Conviction Vacated: Louisiana Beating Case Stirred Cries of Racism, Chi. Trib., Sept. 15, 2007, at 1 (reporting that D.A. Walters originally charged the Jena Six with attempted murder, later reduced the charges to aggravated second degree battery, and argued at trial that the tennis shoes Bell was wearing constituted a dangerous weapon).
27. Christie, supra note 4, at 19-20 (noting that between June 25 and 28, 2007, Bell was convicted of aggravated second degree battery and conspiracy to commit that offense, and that in August 2007 the trial judge sent the conspiracy case back to juvenile court and upheld the battery conviction).
28. State v. Bell, No. KW 07-01129, 2007 La. App. Unpub. LEXIS 40, at *1 (La. App. 3d Cir., Sept. 18, 2007).
29. Although there was no published decision, it appears that the court accepted the defense's theory of the appeal. See, e.g., Witt, supra note 15 (stating that Louisiana's Third Circuit Court of Appeals ruled Bell should not have been tried as an adult and overturned his conviction).
30. Associated Press, Teenager in Jena Six Pleads Guilty to Lesser Charge, N.Y. Times, Dec. 4, 2007, at A24 (reporting Bell's guilty plea to a juvenile charge of second degree battery in return for an eighteen-month sentence, with credit for the ten months he had already served).
31. Some press accounts of the Bell case state that, under pressure from national civil rights groups, the prosecutor also reduced the charges against some of the other defendants in 2007. See, e.g., Richard D. Jones, Conviction in Racially Tinged Louisiana Case Is Overturned, N.Y. Times Sept. 15, 2007, at A14 available at http://www.nytimes.com/2007/09/15/us/15jena2. html ("Facing increasing pressure from national civil rights groups, prosecutors in recent weeks have reduced the charges against some of the other defendants, who are yet to face trial.")
32. Associated Press, Judge Ousted for Remarks, Chi. Trib., Aug. 2, 2008, at 4 (reporting removal of Judge J. P. Mauffray for calling the defendants "troublemakers" and "a violent bunch").
33. 22 See infra notes 55-58 and accompanying text.
34. 23 See infra notes 146-161 and accompanying text.
35. 24 See infra notes 162-168 and accompanying text.
36. 23 See infra Part III.
37. 26 See infra notes 127-129 and accompanying text.
38. 27 See infra notes 52-55 and accompanying text.
39. 543 U.S. 551, 569-571 (2005) (recognizing juveniles' lack of maturity and reduced sense of responsibility, greater susceptibility to negative influences and outside pressures, including peer pressure, and less settled or formed character).
40. For an introduction to the history and theory of the juvenile courts, see Barry C. Feld, Bad Kids: Race and the Transformation of the Juvenile Court 46-78 (1999) [hereinafter Feld, Bad Kids];
41. Anthony M. Platt, The Child Savers (2d ed. 1977);
42. Janet E. Ains- worth, Re-Imagining Childhood and Reconstructing the Legal Order: The Case for Abolishing the Juvenile Court, 69 N.C. L. Rev. 1083, 1096-1097 (1991);
43. See also Barry C. Feld, Violent Youth and Public Policy: A Case Study of Juvenile Justice Law Reform, 79 Minn. L. Rev. 965, 969(1995);
44. David S. Tanenhaus, The Evolution of the Juvenile Courts in the Early Twentieth Century: Beyond the Myth of Immaculate Construction, in A Century of Juvenile Justice 42 (Margaret K. Rosenheim, Franklin E. Zimring, David S. Tanenhaus & Bernardine Dohrn eds., 2002).
45. See In re Gault, 387 U.S. 1, 14-18 (1967) (reviewing scholarly literature).
46. One doctrinal justification was the theory that a child, unlike an adult, has no right to liberty, and hence the state, acting as parens patriae, does not violate any right when it takes a child into custody. Id. at 16.
47. See Platt, supra note 29, at 159 (arguing that the adoption of the parens patriae justification for juvenile court was "an ex post facto fiction" designed to give spurious legitimacy to the new court).
48. For a general description of some of the major cases comprising the criminal procedure revolution, see, for example, Craig M. Bradley, The Failure of the Criminal Procedure Revolution 18-36 (1993)
49. Corinna Barrett Lain, Countermajoritarian Hero or Zero? Rethinking the Warren Court's Role in the Criminal Procedure Revolution, 152 U. Pa. L. Rev. 1361, 1373-1420 (2004);
50. Stephen J. Schulhofer, The Constitution and the Police: Individual Rights and Law Enforcement, 66 Wash. U. L.Q. 11, 12-17 (1988).
51. See Francis A. Allen, The Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. III. L.F. 518, 519 (stating that during Chief Justice Warren's tenure the Court decided more than 600 criminal cases).
52. 34 See Schulhofer, supra note 32, at 12-13.
53. 367 U.S. 643 (1961).
54. 372 U.S. 335 (1963).
55. 384 U.S. 436 (1966).
56. 391 U.S. 145 (1968).
57. 39 In re Gault, 387 U.S. 1 (1967).
58. Id. at 8.
59. Id. at 7.
60. Id. at 6 (quoting the notice, which merely states the time and date for "further Hearings on Gerald's delinquency").
61. 43 Id. at 5-7.
62. 44 Id. at 8.
63. 45 Id. at 26.
64. 46 Id. at 27.
65. The Court noted that regardless of the "euphemistic" term "industrial school," Gerald would be separated from his family and "confined" to a "world" of " 'regimented routine and institutional hours'" with "guards, custodians, state employees, and 'delinquents'" who might be there "for anything from waywardness to rape and homicide." Id. (citing In re Holmes, 109 A.2d 523, 530 (Pa. 1954) (Musmanno, J., dissenting)).
66. 48 Id. at 27-29.
67. 49 Id. at 31-57.
68. 50 Id. at 21.
69. 397 U.S. 358, 368 (1970).
70. 403 U.S. 528, 545 (1976). For a discussion of McKeiver and a review of subsequent state law and practice, see Tina Chen, Note, The Sixth Amendment Right to a Jury Trial: Why Is It a Fundamental Right for Adults and Not Juveniles?, 28 J. Juv. L. 1, 6-7 (2007).
71. U.S. at 551.
72. Id. at 545.
73. Id. at 550.
74. See Sara Sun Beale, The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness, 48 Wm. & Mary L. Rev. 397, 405-406 (2006).
75. The phrase "three strikes" is a baseball analogy: after three strikes, you are "out," i.e., subject to harsher penalties. After California and Washington State adopted their three strikes laws in 1994, twenty-two states and the federal government adopted new laws enhancing punishments for repeat felony offenders. See Ewing v. California, 538 U.S. 11, 15, 30 (2003) (holding twenty-five-year-to-life sentence under California's three strikes law for theft of three golf clubs did not violate the Eighth Amendment ban on cruel and unusual punishment);
76. See also Michael G. Turner & Jody L. Sundt, Three Strikes and You're Out Legislation: A National Assessment, Fed. Probation. Sept. 1995, at 16, 17.
77. See generally JOHN CLARK, JAMES AUSTIN & D. ALAN HENRY, U.S DEP'T OF JUSTICE, "THREE STRIKES AND YOU'RE OUT": A REVIEW OF STATE LEGISLATION (1997)
78. Pew Center on the States, One in 100: Behind Bars in America 2008, at 5 (2008), available at http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS- Prison08-FINAL -2-l-l-FORWEB.pdf.
79. Id. at 3.
80. Beale, supra note 56, at 406.
81. 61 Id. at 407.
82. Feld Bad Kids, supra note 29, at 189-90.
83. see also Barry C. Feld, The Politics of Race and Juvenile Justice: The "Due Process Revolution" and the Conservative Reaction, 20 Just. Q. 765 (2003) (placing the get-tough movement in a larger social and political context).
84. Feld, Bad Kids, supra note 29, at 191.
85. Patricia Torbet et al., U.S. Dept of Justice, State Responses to Serious and Violent Juvenile Crime xi (1996), available at http://www.ncjrs.gov/ pdffiles/statresp.pdf.
86. R.E. Redding & B.S. Mrozoski, Adjudicatory and Dispositional Decision-Making in Juvenile Justice, in Juvenile Delinquency: Prevention, Assessment, and Intervention 232, 236-237 (Kirk Heilbrun, Naomi E. Sevin Goldstein & Richard E. Redding eds" 2005).
87. 66 Id. at 237.
88. TORBET ET AL., supra note 64, at 3, 59.
89. 68 Id. at xi.
90. Patricia Torbet & Linda Szymanski, U.S. Dept of Justice, State Legislative Responses to Violent Crime: 1996-1997 Update (1998), available at http://www.ojjdp.ncjrs. org/jjbulletin/9811/judicial.html.
91. Richard E. Redding, U.S. Dept of Justice, Juvenile Transfer Laws: An Effective Deterrent to Delinquency? 1 (1996), available at http://www.ncjrs.gov/ pdffilesl/ ojjdp/220595.pdf.
92. H.N. Snyder & M. Sickmund, U.S. Dept of Justice, Juvenile Offenders and Victims: 2006 National Report 111, 112 (2006), available at http://ojjdp.ncjrs.gov/ojstatbb/nr2006/downloads/NR2006.pdf.
93. Id. at 114.
94. Id. at 113.
95. Id.
96. Torbet et al., supra note 64, at xv.
97. 76 Id. at 6.
98. 77 Id. at xv, xvi;
99. see also Eric C. Klein, Note, Dennis the Menace or Billy the Kid: An Analysis of the Role of Transfer to Criminal Court in Juvenile Justice, 35 Am. Crim. L. Rev. 371, 395 (1998).
100. Klein, supra note 77, at 397 (explaining that the prosecutor also has discretion to move for a judicial waiver and prosecutor's discretionary choice of initial charges is determinative for charges subject to statutory exclusion).
101. TORBET ET AL., supra note 64, at xv. The categories were wider transfer provisions, broader sentencing authority, less confidentiality of juvenile court records, broader victims' rights, and increased correctional programs.
102. La. Child. Code Ann. art. 804 (2008). At the other end of the range, Louisiana allows trial in the juvenile courts of children as young as ten years of age. Id.
103. La. Child. Code Ann. art. 305(A)(l)-(2) (2008); see also Patrick Griffin, Nat'l Center for Juvenile Justice, State Juvenile Justice Profiles: Louisiana Transfer Provisions (2008), available at http://www.ncjj.org/stateprofiles.
104. La. Child. Code Ann. art. 857(A)(l)-(8) (2008) (including first or second degree murder, aggravated kidnapping or rape, aggravated battery involving discharge of a gun, armed robbery committed with a gun, and forcible rape committed upon a child at least two years younger than the rapist).
105. La. Child. Code Ann. art. 305(B)(3) (2008); Snyder & Sickmund, supra note 71, at 113;
106. See also GRIFFIN, supra note 81 (noting additional offenses eligible for this transfer mechanism include attempted murder, manslaughter, aggravated oral sexual battery, and a second or subsequent aggravated battery or burglary, as well as certain controlled substance violations
107. GRIFFIN, supra note 81.
108. Griffin, supra note 81; see also La. Child. Code Ann. art. 305(B)(3)-(4) (2008).
109. About half of the states provide for such a mechanism, which is referred to as a "reverse waiver." Although reverse waiver provisions are common, Louisiana is one of the twenty-five states that make no provision for reverse waivers. See Snyder & Sickmund, supra note 71, at 111.
110. La. Child. Code Ann. art. 305(D) (2008) (providing that the "court exercising criminal jurisdiction shall retain jurisdiction over the child's case, even though he pleads guilty to or is convicted of a lesser offense" and that "[a] plea to or conviction of a lesser included offense shall not revest jurisdiction in the court exercising juvenile jurisdiction over such child").
111. Cf. State v. Dixon, 712 So. 2d 1078, 1081 (La. Ct. App. 1998) (holding that no notice or hearing is required before prosecutor sends a case to criminal court by obtaining an indictment charging a juvenile with an offense that subjects him to that court's exclusive jurisdiction under La. Child. Code Ann. art. 305(A)(1)).
112. Act Effective Aug. 27, 1994, 1994 La. Acts 710, 710-13;
113. Act Effective Aug. 27, 1994, 1994 La. Acts 779, 779-782.
114. 89 See, e.g., Act Effective Aug. 15, 1995, 1995 La. Acts 1033, 1033-34;
115. Act Effective Aug. 15, 1995, 1995 La. Acts 2597, 2597-98.
116. Act Effective Aug. 15, 1995, 1995 La. Acts 1647, 2647-2648 (adding aggravated burglary, aggravated sexual battery, and aggravated sexual battery committed with firearm).
117. La. Rev. Stat. Ann.§ 15:902.1 (2007) (authorizing rules and regulations to enable the transfer of adjudicated juvenile delinquents to adult correctional facilities when the delinquents have attained the age of seventeen years, the age of full criminal responsibility).
118. In re C.B., 708 So. 2d 391, 393-94, 399 (La. 1998) (describing background of legislation and its effect).
119. Id, at 396-400.
120. Id. at 400.
121. 94 See, e.g., State v. Perique, 439 So. 2d 1060, 1064 (La. 1983) (holding that de facto transfer to adult court for juveniles accused of specific offenses under statutory predecessor to§ 305 is valid exercise of state's police powers that does not deprive juvenile of any right);
122. State v. Leach, 425 So. 2d 1232, 1236-1237 (La. 1983) (holding that legislative classification by age and offense committed does not violate equal protection);
123. State v. Pilcher, 655 So. 2d 636, 641 (La. App. 1995) (reaffirming Perique and Leach and holding constitution does not require hearing prior to transfer of individual juvenile).
124. 93 See, e.g.. Brown v. Bd. of Educ, 347 U.S. 483, 495 (1954) (holding that state's assignment of students to schools on the basis of race violated Equal Protection Clause).
125. 96 See, e.g.. Baker v. Carr, 369 U.S. 186, 209-210 (1962) (holding that the reapportionment of state legislative districts is not a political question and is justiciable by the federal courts).
126. 97 See, e.g., Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960) (holding that the redrawing of Tuskegee's electoral district to exclude virtually all black voters violated the Fifteenth Amendment).
127. Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 Mich. L. Rev. 48, 48 & n.2 (2000) (citing, inter alia, Brown v. Mississippi, 297 U.S. 278 (1936) (coerced confessions);
128. Powell v. Alabama, 287 U.S. 45 (1932) (right to counsel); and Moore v. Dempsey, 261 U.S. 86 (1923) (mob-dominated trial)).
129. For a rich account of the Supreme Court's decisions involving the Scottsboro Boys, See Michael J. Klarman, Powell v. Alabama: The Supreme Court Confronts "Legal Lynchings," in Criminal Procedure Stories 1 (Carol S. Steiker ed., 2006).
130. Bouie v. City of Columbia, 378 U.S. 347, 362 (1964).
131. United States v. Price, 383 U.S. 787, 798-800 (1966) (upholding indictment charging conspiracy of law enforcement officers and private citizens to violate 18 U.S.C.§ 242);
132. See also United States v. Guest, 383 U.S. 745, 746-49, 760 (1966) (upholding indictment under 18 U.S.C.§ 241 that alleged, inter alia, that private individuals conspired to keep black residents of Georgia from exercising their rights by inter alia, causing their arrest by false reports of crimes).
133. 101 See Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 145-148 (1994) (describing news coverage and its impact on public and political opinion).
134. See id. at 146-147 Klarman argues that this result was anticipated by civil rights leaders, who gave up hope of persuading southern whites to give up segregation and redirected their energies to obtain support from northerners by provoking and then peacefully enduring violent assaults by southern law enforcement and mobs.
135. Id. at 141-146.
136. 103 Cf. Carol S. Steiker, Introduction to Criminal Procedure Stories, supra note 98, at vii, ix (noting absence of "discussion of criminal procedure as a tool of racial equality" in formal decisions of the Court in the 1960s).
137. 104 391 U.S. 145, 156 (1968).
138. For an exceptionally rich description of the events leading up to the Duncan opinion, and its aftermath, see Nancy J. King, Duncan v. Louisiana: How Bigotry in the Bayou Led to the Federal Regulation of State Juries, in CRIMINAL PROCEDURE STORIES, supra note 98, at 261.
139. Id.
140. Brief for Appellant at 23-24, Duncan v. Louisiana, 391 U.S. 145 (1968) (No.410), 1967 WL 113845.
141. 108 Duncan, 391 U.S. at 147.
142. Id.
143. Id. at 156.
144. Steiker, supra note 103, at ix.
145. See Lucas A. Powe, The Warren Court and American Politics 379, 391-92, 399- 400 (2000) (noting Gideon was the Warren Court's "only popular criminal procedure decision" and describing the strong negative reaction to Escobedo and Miranda).
146. See Sara Sun Beale, What's Law Got to Do With It: The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23, 40-41 (1997).
147. POWE, supra note 112, at 407-410
148. See id. (describing the politics of law and order during this period and the passage of the legislative repeal of Miranda).
149. Cf. Schulhofer, supra note 32, at 16-17 (describing three themes of Warren Court's decisions as: (1) an "egalitarian impulse ... to stamp out not only racial discrimination but also to insure fair treatment of rich and poor alike"; (2) the need to bolster the adversarial process to check executive power; and (3) a concern for practical implementation).
150. See POWE, supra note 112, at 379-399
151. Id. at 386 (noting that Gideon was "the last important purely southern criminal procedure case" and arguing that the public perception of later decisions was influenced by its conflation of race and crime).
152. Swain v. Alabama, 380 U.S. 202 (1965).
153. 120Strauder v. West Virginia, 100 U.S. 303, 310 (1879).
154. 118 U.S. 356, 374 (1886).
155. 122 Swain, 380 U.S. at 203-204
156. See Batson v. Kentucky, 476 U.S. 79, 92-93 (1986) ("Since . . . Swain has placed on defendants a crippling burden of proof, prosecutors' peremptory challenges are now largely immune from constitutional scrutiny.").
157. Swain, 380 U.S. at 210, 221-222
158. Id. at 223-224
159. The Court explained: In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.
160. Id. at 222.
161. 476 U.S. at 96.
162. 128 Batson was later extended to sex-based peremptory challenges. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128-129 (1994).
163. The efficacy of Batson challenges is also in dispute. See, e.g., Jere W. Morehead, When a Peremptory Challenge Is No Longer Peremptory: Batson's Unfortunate Failure to Eradicate Invidious Discrimination from Jury Selection, 43 DEPAUL L. REV. 625, 633 (1994) ("Despite the Batson rule's noble purpose, it cannot prevent clever lawyers from using peremptory challenges to strike potential jurors based upon impermissible rationales so long as they pretend to use other, permissible bases. Lawyers will continue to strike, with impunity . . . .");
164. Alan Raphael, Discriminatory Jury Selection: Lower Court Implementation of Batson v. Kentucky, 25 Willamette L. Rev. 293, 318 (1989) (noting that such challenges have failed "[i]n the overwhelming majority of reported cases implementing Batson").
165. 481 U.S. 279 (1987).
166. 131. Id. at 296-97, 311-13.
167. Id. at 356-357 (Blackmun, J., dissenting) (noting that the prosecutor was five times more likely to seek the death penalty in black defendant/white victim cases than black defendant/ black victim cases and three times more likely to seek the death penalty in black defendant/ white victim cases than in white defendant/black victim cases).
168. 131 See id. at 349-50 (describing test under Castaneda v. Partida, 430 U.S. 482, 493-494 (1977)).
169. 517 U.S. 456, 470-471 (1996).
170. See, e.g., Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 606 (1998) ("The Armstrong ruling will prevent many defendants who were selectively prosecuted from gaining discovery, and thereby ensure that many meritorious claims will never be proven.");
171. Marc Michael, Note, United States v. Armstrong: Selective Prosecution-A Futile Defense and Its Arduous Standard of Discovery, 47 Cath. U. L. Rev. 675, 713-18 (1998) (explaining the background of Armstrong and criticizing the standard of review for making it "nearly impossible" to prove selective prosecution).
172. 136 See supra notes 52-55 and accompanying text.
173. McKeiver v. Pennsylvania, 403 U.S. 528, 536-38 (1971). The Court consolidated two cases, one from Pennsylvania, and the other involving the North Carolina school protests. The North Carolina juvenile court had entered custody orders declaring each of the juveniles a "delinquent 'in need of more suitable guardianship' and committing him to the custody of the County."
174. Id. at 537-38. The juvenile court then "suspended these commitments and placed each juvenile on probation," with several conditions that could result in their probation being revoked: in addition to the condition that they not violate any State laws, the juveniles were also required to report monthly, to be home by eleven p.m. each evening, and to attend an approved school.
175. Id at 538.
176. See supra notes 56-94 and accompanying text.
177. See, e.g., Feld, Bad Kids, supra note 29, at 197-208 (comparing increases in juvenile and adult crime and noting that "[t]he intersection of race, guns, and homicide fanned the public and political 'panic' that, in turn, led to the recent get-tough reformulation of juvenile justice waiver and sentencing policies");
178. See also Franklin E. Zimring & Gordon Hawkins, CRIME IS NOT THE PROBLEM: LETHAL VIOLENCE IN AMERICA (1997) (arguing that U.S. crime rates overall are not higher than those of other nations and that policymakers should focus on violent crime).
179. FELD, BAD KIDS, supra note 29, at 205.
180. Beale, supra note 56, at 418.
181. Id. at 418-419
182. Id. at 420.
183. Robert E. Shepherd, Jr., How the Media Misrepresents Juvenile Policies, CRIM. JUST., WINTER 1998, at 37 (citing a Time/CNN poll).
184. Klein, supra note 77, at 374 (citing a USA Today poll).
185. See supra Part III.A.
186. See, e.g., Beale, supra note 113, at 40-44;
187. See, e.g., Beale, supra note 113, at 40-44; Barry C. Feld, Race, Politics, and JuvenileJustice: The Warren Court and the Conservative "Backlash," 87 Minn. L. Rev. 1447, 1538-1552 (2003).
188. See Donald R. Kinder & Lynn M. Sanders, Divided by Color: Racial Politics and Democratic Ideals 221-257 (1996);
189. Barry C. Feld, Unmitigated Punishment: Adolescent Criminal Responsibility and LWOP Sentences, 10 J. L. & Fam. Stud. 11, 32-33 & nn. 112-119 (2007).
190. see also Feld, supra note 62, at 786-91 (describing political developments and the use of coded racial appeals).
191. See generally David C. Anderson, Crime and the Politics of Hysteria: How the Willie Horton Story Changed American Justice (1995).
192. But see James M. Glaser, Race, Campaign Politics, and the Realignment in the South 186 (1996) (arguing that racial cues played little role in presidential elections where other ideological differences were so stark that "race simply has not mattered much").
193. For a general discussion of the problem of politicizing crime, see William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001).
194. See Beale, supra note 113, at 42-43.
195. Id.
196. See Franklin E. Zimring, American Youth Violence 4 (1998).
197. Id.
198. Legislation in other states has been traced back to a single case. In Massachusetts, fifteen-year-old Eddie O'Brien's murder of his neighbor led to legislation requiring the automatic transfer to criminal court of any murder charge involving a juvenile.
199. See PETER ELIKANN, SUPERPREDATORS: THE DEMONIZATION OF OUR CHILDREN BY THE LAW 108-09 (1999) (describing the individual incident and the ensuing hysteria that led to passage of the Massachusetts legislation). The abduction and murder of Polly Klaas had a similar effect in California, leading directly to the passage of the most severe three strikes law in the United States.
200. See Michael Vitiello, Three Strikes: Can We Return to Rationality?, 87 J. CRIM. L. &CRIMINOLOGY 395, 409-22 (1997) (describing effect of Klaas' murder in galvanizing support for three strikes bill, including Governor Pete Wilson's announcement of his support at her funeral, despite widespread recognition of problems with the bill)
201. see also Jennifer E. Walsh, Three Strikes Laws 37-42 (2007) (describing Klaas's murder and passage of California's three strikes law, including Wilson's decision to support the harshest version of the law).
202. See, e.g.. Fox Butterfield, All God's Children: The Bosket Family and the American Tradition of Violence 226-227 (1997) (describing how public outcry over Bosket's case led to passage of New York's Juvenile Offender Act of 1978);
203. Klein, supra note 77, at 383-384 (describing the Bosket case as the "straw that broke the proverbial camel's back . . . [starting] a national wave in favor of mandating transfer to adult criminal court for violent young offenders").
204. Klein, supra note 77, at 383.
205. Id.
206. Id. at 383-384.
207. Simon Singer, Recriminalizing Delinquency: Violent Juvenile Crime and Juvenile Justice Reform 61 (1996)
208. see also id. at 59-68 (noting that votes in the Assembly and Senate were 125 to 10 and 50 to 2, respectively, in favor of the bill, and citing comments of different legislators).
209. Zimring, supra note 154, at 16.
210. John J. Dilulio, The Coming of the Super-Predators, Wkly. Standard, Nov. 27, 1995, at 23.
211. Id. at 23. Dilulio later co-authored a book that presented his arguments in greater length
212. See WILLIAM J. BENNETT, JOHN DIIULIO &JOHN P. WALTERS, BODY COUNT: MORAL POVERTY ... AND HOW TO WIN AMERICA'S WAR AGAINST CRIME AND DRUGS (1996). Dilu- lio's co-authors were neoconservative Bill Bennett, who served as Secretary of Education in the Reagan administration and drug czar in the Bush administration, and John Walters, who had served as Bennett's chief of staff and later himself served as drug czar.
213. Dilulio, supra note 162, at 24, 26.
214. Zimring, supra note 154, at 4-5 (citation omitted).
215. Paul J. McNulty, Natural Born Killers?, Pol'y Rev., Winter 1995, at 84, 85.
216. Barry Krisberg, The Politics of the War Against the Young, in After the War on Crime: Race, Democracy, and a New Reconstruction 195 (Mary Louise Frampton, Ian Haney López & Jonathan Simon eds., 2008) (citation omitted). Quackenbush utilized the media, organizing a series of events at which family members of murder victims testified.
217. Id. at 194. Although the bill in question affected only a small number of youths, it marked an important break with the rehabilitative tradition for juvenile offenders, and it led to additional, more far-reaching proposals at nearly every legislative session in California.
218. Id. at 195-97.
219. Zimring, supra note 154, at 6. For example, then-Senator John Ashcroft "characterized the juvenile justice system as one that 'reprimands the crime victim for being at the wrong place at the wrong time, and then turns around and hugs the juvenile terrorist, whispering ever so softly into his ear, "Don't worry, the State will cure you.'"" Klein, supra note 77, at 374 (quoting 143 Cong. Rec. S145-01 (daily ed. Jan. 21, 1997) (statement of Sen. Ashcroft)).
220. Jeffrey D. Alderman, Leading the Public: The Media's Focus on Crime Shaped Sentiment, The Public Perspective, Mar.-Apr. 1994, at 26, 26-27 & fig.l.
221. Id.
222. Crime was the leading topic covered in the networks' dinner hour news programs throughout the 1990s, and the number of crime stories tripled from the beginning to the end of the decade. Beale, supra note 56, at 422-423 (noting an increase in average crime stories per year, from 557 at the beginning of the decade to 1,613 at the end of the decade). Although the murder rate fell during this period, the number of murder stories increased five-fold.
223. See id. at 423 (noting increase in average murder stories per year from fewer than 100 at the beginning of the decade to more than 500 at the end of the decade). The networks responded to greatly increased economic pressures that made it expedient to move away from hard news and to emphasize tabloid-style crime stories.
224. See id. at 424-429 (noting pressure for profits from conglomerate corporate owners, loss of audience share, and proliferation of television news magazines).
225. See id. at 430 nn. 129-130 (collecting studies of local news content).
226. See id. at 430-432 (citing authorities, including James T. Hamilton, Channeling Violence: The Economic Market for Violent Television Programming (1998)).
227. The emphasis on crime in the local news depends on local viewer interest in violent programming, not on the crime in the area. Stations also select news topics and style of presentation to establish their brand identity in the local market.
228. See id. at 430.
229. Lori Dorfman & Vincent Schiraldi, Off Balance: Youth, Race & Crime in the News 18 (2001), available at http://www.buildingblocksforyouth.org/ media.
230. Lori Dorfman, Katie Woodruff, Vivian Chavez & Lawrence Wallack, Youth and Violence on Local Television News in California, 87 Am. J. Pub. Health 1311, 1314 (1997).
231. Dorfman & Schiraldi, supra note 175, at 18-19.
232. Id. at 20.
233. Shepherd, supra note 144, at 38.
234. Id.
235. See Dorfman & Schiraldi, supra note 175, at 7 (collecting existing studies of crime reporting by the media and finding that blacks and young people are disproportionately portrayed as criminals);
236. Feld, supra note 62, at 782-786.
237. Franklin D. Gilliam, Jr., Shanto Iyengar, Adam Simon & Oliver Wright, Crime in Black and White: The Violent Scary World of Local News, 1 Harv. Int"l J. Press/Politics 6, 8 (1996).
238. Daniel Romer, Kathleen H. Jamieson & Nicole J. De Coteau, The Treatment of Persons of Color in Local Television News: Ethnic Blame Discourse or Realistic Group Conflict?, 25 Comm. Res. 286, 292 (1998).
239. Id. at 293.
240. Id. at 294.
241. Id.
242. Id.
243. (citing Robert M. Entman & Andrew Rojecki, The Black Image in the White Mind: Media and Race in America 78-106 (2000)). Entman and Rojecki found that there was a three to one disparity in the time allocated in the media to white victims as opposed to black victims in Chicago.
244. Id. at 81.
245. Beale, supra note 56, at 459-460 (noting research concerning portrayals in mug shots, in the physical custody of police, or in prison clothing).
246. See Dorfman & Schiraldi, supra note 175;
247. Beale, supra note 56, at 458 n.276;
248. Robert K. Goidel, Craig M. Freeman & Steven T. Procopio, The Impact of Television Viewing on Perceptions of Juvenile Crime, i. Broad. & Elec. Media 119, 122 (2006).
249. Beale, supra note 56, at 458-459.
250. Dorfman & Schiraldi, supra note 175, at 22-23.
251. Id.
252. Id.
253. See Beale, supra note 56, at 442-465 Data from hundreds of experimental simulations and surveys has confirmed the news media's agenda setting and priming effects. Agenda setting refers to the media's ability to focus the public's attention on certain issues, and many studies confirm the common sense view that media has the power to influence the public agenda.
254. Id. at 442-43. Once the news media has increased the salience of an issue by agenda setting, the media then primes viewers and readers to believe that those issues require more political attention, and to judge candidates by their positions on these issues.
255. Id. at 443-44. Experimental simulations show that the priming effect of crime stories increases the importance of presidential candidates' positions on crime.
256. Id. (citations omitted). Moreover, this effect seems to be linked to racial attitudes.
257. Id. at 444 (citations omitted). In an experimental simulation, adding a crime story including a mug shot of a black suspect dramatically decreased the support for Democratic presidential candidate Bill Clinton, apparently bringing stereotypes about party race allegiances to the forefront of viewers' minds.
258. Id. at 44-45 (citations omitted).
259. For a general discussion of the research on framing, fear, and racial typification, see id. at 446-61.
260. For another overview of the research in this area see Feld, supra note 62, at 782-86.
261. Beale, supra note 56, at 448-49.
262. Gilliam et al., supra note 182, at 6, 8.
263. Franklin D. Gilliam & Shanto Iyengar, Prime Suspects: The Influence of Local Television News on the Viewing Public, 44 Am. J. Pol. Sci. 560, 563-564 (2000).
264. Franklin D. Gilliam & Shanto Iyengar, Super-Predators or Victims of Societal Neglect: Framing Effects in Juvenile Crime Coverage, in Framing American Politics 148, 156-157 (Karen Callaghan & Frauke Schnell eds., 2005).
265. Gilliam & Iyengar, supra note 198, at 565-568.
266. Gilliam & Iyengar, supra note 199, at 156-157, 163. Exposure to a news segment that included a white victim also had a significant effect, increasing fear of random street crime, juvenile crime, and violence, but not increasing fear of crime or support of punitive policies.
267. Id. at 163.
268. Gilliam & Iyengar, supra note 198, at 570-571.
269. Id. at 560-561.
270. Goidel et al., supra note 189, at 128-135.
271. Id.
272. At the end of 2007, there were 2,293,157 persons in local jails and state and federal prisons. Heather C. West & William J. Sabol, Bureau of Justice Statistics Bulletin, Prisoners in 2007, at 6 tbl.8 (2008), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p07. pdf. At the end of 2006, there were 92,845 juveniles incarcerated in juvenile facilities.
273. Id. at 7 tbl.10. The rate of incarceration is much higher for persons of color than for whites in both the adult and juvenile systems. The rate of imprisonment in local jails and state and federal prisons for black males in 2007 was 3,138 per 100,000, in contrast to the rate of 1,259 per 100,000 for Hispanic or Latino males and 481 per 100,000 for white males.
274. Id. at 4 tbl.6
275. see also MARC MAUER &RYAN KING, UNEVEN JUSTICE: STATE RATES OF INCARCERATION BY RACE AND ETHNICITY 3 (2007) (noting black incarceration rate is 5.6 times the rate of whites, Hispanic incarceration rate is 1.8 times the rate for whites, and ratios vary substantially state to state), available at http://www.sentencingproject.org/PublicationDetails.aspx7PublicationID= 593;
276. Brett E. Garland, Cassia Spohn & Eric J. Wodahl, Racial Disproportionality in the American Prison Population: Using the Blumstein Method to Address the Critical Race and Justice Issue of the Twentieth Century, 5 Just. PolV J. 4, 4-6 (2008), available of http://www.cjcj.org/files/racial- disproportionality.pdf (noting that at end of 2005, blacks made up 12% of population and 40% of the 1,525,924 persons incarcerated in the United States and arguing that racial disproportionality in imprisonment "is the most serious race and justice issue facing criminal justice policymakers");
277. PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, supra note 58 (evaluating impact of unprecedented rate of imprisonment). With regard to the juvenile justice system, the National Center for Juvenile Justice provides information on 26,344 juveniles in custody at the end of 2006, of whom 8,167 were white and 11,089 were black.
278. MELISSA SICKMUND, T.J. SLADKY &WEI KANG, CENSUS OF JUVENILES IN RESIDENTIAL PLACEMENT DATABOOK, OFFENSE PROFILE OF DETAINED RESIDENTS BY SEX AND RACE/ETHNICITY FOR UNITED STATES, 2006, available at http://www.ojjdp.ncjrs. gov/ojstatbb/ cjrp/asp/Offense-Detained.asp. It appears that this information is quite incomplete, however, since the Bureau of Justice Statistics Bulletin, Prisoners in 2007 states that more than 90,000 juveniles were incarcerated in juvenile facilities in 2006. WEST &SABOL, supra, at 7 tbl.10. In 1995, minority youth constituted 68% of the population confined in secure facilities but only 32% of the country's total youth population.
279. Roger Jackson &Edward Pabon, Race and Treating Other People's Children as Adults, 28 J. CRIM. JUST. 507, 512 (2000).
280. In 2005, the last year for which complete data are available, the delinquency rate for black juveniles was 108.4 per 1,000, compared to 44.4 per 1,000 for white juveniles, and the offense rate for black male juveniles was higher than that for other groups regardless of the offense.
281. In 2005, the last year for which complete data are available, the delinquency rate for black juveniles was 108.4 per 1,000, compared to 44.4 per 1,000 for white juveniles, and the offense rate for black male juveniles was higher than that for other groups regardless of the offense. Charles Puzzanchera & Melissa Sickmund, Nat'l Ctr. for Juvenile Just., Juvenile Court Statistics 2005, at 20 (2008), available at http://ojjdp.ncjrs.org/ojstatbb/ njcda/ pdf/jcs2005.pdf. There have been many structural explanations for this phenomenon.
282. Everette B. Penn, Black Youth: Disproportionality and Delinquency, in RACE AND JUVENILE JUSTICE 47, 53-56 (Everette B. Penn, Helen Taylor Greene &Shaun L. Gabbidon eds., 2006).
283. FELD, BAD KIDS, supra note 29, at 207.
284. Feld, supra note 148, at 38.
285. Amanda Burgess-Proctor, Kendal Holtrop & Francisco A. Villarruel, Campaign for Youth Justice, Youth Transferred to Adult Court: Racial Disparities 9 (2006), available at http://www.nicic.org/Library/022087;
286. M. A. Bortner, Marjorie S. Zatz & Darnell F. Hawkins, Race and Transfer: Empirical Research and Social Context, in The Changing Borders of Juvenile Justice: Transfer of Adolescents to the Criminal Court 277, 277-320 (Jeffrey Fagan & Franklin Zimring eds., 2000)
287. see also Anne L. Stahl, Office of Juvenile Justice and Delinquency Prevention, Delinquency Cases Waived to Criminal Court, 1987-1996, at 1-2 (1999) (noting that cases involving white youths were less likely to be transferred during time period of analysis than cases involving black youths, especially drug cases).
288. Burgess-Proctor et al., supra note 210, at 8-9 (citing Donna M. Bishop, Juvenile Offenders in the Adult Criminal System, in 27 Crime & Justice: A Review of Research 81, 81-167 (Michael Tonry ed., 2000)).
289. Feld, supra note 148, at 35-36 (noting that differences in local police practices, location of crime, and victim reaction can affect the disposition of a case).
290. Michael J. Lieber, Disproportionate Minority Confinement (DMC) of Youth: An Analysis of State and Federal Efforts to Address the Issue, in Race and Juvenile Justice, supra note 207, at 141, 145.
291. Id. at 145-146.
292. Penn, supra note 207, at 47, 49.
293. Lieber, supra note 213, at 150-151.
294. Id. at 151.
295. Id. at 150-151.
296. see also Madeline Wordes, Timothy S. Bynum &Charles J. Corley, Locking up Youth: The Impact of Race on Detention Decisions, 31 J. RES. CRIME &DELINQUENCY 149 (1994) (studying cases of felony defendants referred by police and detained by the courts and finding that race had an effect after controlling for weapon use, victim injury, and offender's background). Additionally, schools are an important referral source for the juvenile court and there is evidence of racial bias in school discipline.
297. See Bernadine Dohrn, The School, the Child, and the Court, in A CENTURY OF JUVENILE JUSTICE, supra note 29, at 267, 283.
298. See Penn, supra note 207, at 56.
299. Casey Strategic Consulting Group, Reducing Juvenile Incarceration in Louisiana (2003), available at http://www.correctionsproject.com/tallulah/ pressRoorn/reports- rulings/caseyReport.pdf.
300. Id. at 32. At the parish level, the disparity was even greater: blacks were incarcerated at a rate 12.7 times greater than whites.
301. Id.
302. Id. at 33.
303. Id. at 34-35.
304. Id. at 35-37.
305. Id. (noting effects of lack of money to pay for costly private treatments and hire a private attorney).
306. George S. Bridges & Sara Steen, Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms, 63 Am. Soc. Rev. 554, 555-564 (1998) (basing conclusions on review of 233 narrative written reports by probation officers in three counties).
307. Lieber, supra note 213, at 151.
308. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes About Adolescent Offenders, 29 L. & Hum. Behav. 483, 496 (2004). Racial priming had similar effects on police officers.
309. Id. at 493.
310. Id. at 500.
311. Andrew E. Taslitz, Wrongly Accused: Is Race a Factor in Convicting the Innocent?, 4 OHIO ST. J. CRIM. L. 121, 126-127 (2006).
312. Id.
313. Lu-in Wang, Discrimination by Default: How Racism Becomes Routine (2006) (describing these processes).
314. See generally Andrew E. Taslitz, Racial Blindsight: The Absurdity of Color-Blind Criminal Justice, 5 OHIO ST. J. CRIM. L. 1, 6-7 (2007) (explaining how the processes may apply in the context of criminal cases).
315. Stephen M. Feiler & Joseph F. Sheley, Legal and Racial Elements of Public Willingness to Transfer Juvenile Offenders to Adult Court, 27 J. Crim. Just. 55, 61 (1999).
316. See Puzzanchera & Sickmund, supra note 207, at 6 (noting that juvenile court caseload increased 46% between 1985 and 2005, and that caseload peaked in 1997). It should be noted, however, that crimes against the person have not decreased, and in fact continued to increase after 1995, though at a slower rate.
317. Id.
318. Richard E. Redding, Office of Juvenile Justice and Delinquency Prevention, Juvenile Transfer Laws: An Effective Deterrent to Delinquency? 3-6 (2008), available at http://www.ncjrs.gov/pdffilesl/ojjdp/220595.pdf.
319. Id. at 8.