Juvenile justice: The fourth option

Iowa Law Review

Volumn 95, Issue 1, 2009, Pages 1-62

  Slobogin, Christopher ^a   Fondacaro, Mark R ^b  

^a VANDERBILT UNIVERSITY   (United States)

^b JOHN JAY COLLEGE OF CRIMINAL JUSTICE   (United States)

Author keywords

[No Author keywords available]

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EID: 76749097740     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (239)

1. See infra text accompanying notes 16-28 (discussing the rehabilitative model).
2. See infra text accompanying notes 29-34 (discussing the adult-retribution model).
3. See infra text accompanying notes 35-38 (discussing the diminished-retribution model).
4. See infra Part III (reviewing research on juvenile offenders and crime-prevention programs).
5. See infra text accompanying notes 135-56 (discussing typical mitigation factors for both adults and juveniles).
6. See infra text accompanying notes 195-200 (explaining that the individual-prevention model requires a criminal act).
7. See infra text accompanying notes 150-51 (noting that in the adult criminal justice setting, contextual factors are rarely given mitigating weight).
8. See infra text accompanying notes 26-27 (describing the use of "reformatories" and other programs that are vestiges of the rehabilitative approach).
9. See infra text accompanying notes 124-29 (discussing the constitutional restraints on the state's parens patriae power).
10. See infra text accompanying notes 51-53 (describing behavioral-science research on the development of juveniles' cognitive capacities).
11. Kansas v. Hendricks, 521 U. S. 346 (1997), discussed infra text accompanying notes 163-74.
12. Hendricks, 521 U. S. at 358.
13. Eric S. Janus, Preventing Sexual Violence: Setting Principled Constitutional Boundaries on Sex Offender Commitments, 72 IND. L. J. 157, 206 (1996) ("Not one person committed since 1975 has been discharged from a final sex offender commitment in Minnesota.").
14. For a summary of this debate, see generally Edward Rubin, Just Say No to Retribution, 7 Buff. Crim. L. Rev. 17 (2003).
15. See infra text accompanying notes 182-83, 208 (discussing the public's preference for reducingjuvenile crime through the least-restrictive punishment).
16. JANE ADDAMS, MY FRIEND JULIA LATHROP 96 (Univ. of Ill. Press 2004) (1935).
17. BEN LINDSEY& HARVEYJ. O'HIGGINS, THE BEAST 133 (1910).
18. Martin R. Gardner, The Right of Juvenile Offenders to Be Punished: Some Implications of Treating Kids as Persons, 68 NEB. L. REV. 182, 191 (1989).
19. David S. Tanenhaus, The Evolution of Transfer Out of the Juvenile Court, in THE CHANGINC BORDERS OF JUVENILE JUSTICE 13, 18 (Jeffrey Fagan & Franklin E. Zimring eds., 2000) [hereinafter CHANCING BORDERS].
20. See id. at 18-19 ("[T]he idealized juvenile court that Addams and other leaders in the juvenile court movement spoke about so glowingly never actually existed.").
21. See generally Mark Fondacaro, Christopher Slobogin & Tricia Cross, Reconceptualizing Due Process in Juvenile Justice: Contributions from Law and Social Science, 57 HASTINGS L. J. 955 (2006) (proposing a procedural framework for the juvenile justice system).
22. ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY 142 n. 15 (2d ed. 1977) (internal quotation marks omitted).
23. Julian W. Mack, The Juvenile Court, 23 HARV. L. REV. 104, 107 (1909).
24. Tanenhaus, supra note 19, at 40 n. 17;
25. see also Mack, supra note 23, at 107 (arguing that the State, instead of punishing children, should attempt to rehabilitate them).
26. See, e.g., Kolender v. Lawson, 461 U. S. 352, 361 (1983) (declaring unconstitutionally vague a California statute requiring vagrants to provide a peace officer with a "credible and reliable" identification) ; Papachristou v. City of Jacksonville, 405 U. S. 156, 171 (1972) (declaring unconstitutionally vague a Jacksonville, Florida vagrancy ordinance).
27. PLATT, supra note 22, at 54.
28. DEP'T OF HEALTH & HUMAN SERVS., U. S. PUB. HEALTH SERV., YOUTH VIOLENCE: A REPORT OF THE SURGEON GENERAL 118 (2001) [hereinafter SURGEON GENERAl REPORT].
29. JUVENILE JUSTICE PHILOSOPHY: READINGS, CASES AND COMMENTS 552 (Frederic L. Faust & Paul J. Brantingham eds., 1974) (describing the "orthodox" view).
30. Tanenhaus, supra note 19, at 20-21.
31. Richard E. Redding, Adult Punishment for Juvenile Offenders: Does It Reduce Crime? [hereinafter Redding, Adult Punishment], in HANDBOOK OF CHILDREN, CULTURE, AND VIOLENCE 375, 377 (Nancy E. Dowd, Dorothy G. Singer & Robin Fretwell Wilson eds., 2006) [hereinafter HANDBOOK].
32. Richard E. Redding & Barbara Mrozoksi, Adjudicatory and Dispositional Decision Making in Juvenile Justice, in JUVENILE DELINQUENCY: PREVENTION, ASSESSMENT AND INTERVENTION 232, 238 (Kirk Heilbrun, Naomi E. Sevin Goldstein & Richard E. Redding eds., 2005).
33. Richard E. Redding & James C. Howell, Blended Sentencing in American Juvenile Courts, in CHANGING BORDERS, supra note 19, at 145, 145-79.
34. Elisabeth S. Scott & Laurence Steinberg, Blaming Youth, 81 TEX. L. REV. 799, 807-09 (2003).
35. Alfred S. Regnery, Getting Away with Murder: Why the Juvenile Justice System Needs an Overhaul, 34 POL'YREV. 65, 66 (2000).
36. ABA, IJA-ABA JUVENILEJUSTICE STANDARDS ANNOTATED: A BALANCED APPROACH xviixix (Robert E. Shepherd, Jr. ed., 1996).
37. JOHN M. JUNKER, STANDARDS RELATING TO JUVENILE DELINQUENCY AND SANCTIONS §§ 4.2 (B) (2), 5.2 (A) (2) (a) (1980) [hereinafter SCTANDARDS].
38. Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137, 154-72 (1997) (discussing developmental influences on juveniles' criminal behavior) ; Franklin E. Zimring, Penal Proportionality for the Young Offender. Notes on Immaturity, Capacity, and Diminished Responsibility, in YOUTH ON TRIAL: A DCEVELOPMENTAL PERSPECTIVE ON JUVENILEJ USTICE 267 (Thomas Grisso & Robert G. Schwartz eds., 2000) [hereinafter YOUTH ON TRIAL]. The latter chapter updates arguments from Franklin E. Zimring, Background Paper, in CONFRONTING YOUTH CRIME: TWENTIETH CENTURY FUND TASK FORCE ON SENTENCING POLICY TOWARD YOUNG OFFENDERS 27, 38-43 (1978).
39. Richard E. Redding, Juveniles Transferred to Criminal Court: Legal Reform Proposals Based on Social Science Research, 1997 UTAH L. REV. 709, 757 ("About one-third of the states now have determinate or mandatory minimum sentencing laws for juveniles, usually based on the offense and prior record.").
40. Mack, supra note 23, at 119-20 (emphasis added).
41. STANDARDS, supra note 36, at § 1.1 ("[T]he purposes of the juvenile delinquency code should be... to forbid conduct that unjustifiably and without excuse inflicts or risks substantial harm to individual or public interests"; prevent conviction for "conduct that is without fault or culpability;" give fair notice, and "recognize the unique physical, psychological, and social features of young persons").
42. Id. at 160.
43. WILLIAM J. BENNETT, JOHN J. DIIULIO, JR. & JOHN P. WALTERS, BODY COUNT 27 (1996). The authors stat: America is now home to thickening ranks of juvenile 'super-predators'-radically impulsive, brutally remorseless youngsters, including ever more preteenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs, and create serious communal disorders[, and who] do not fear the stigma of arrest, the pains of imprisonment, or the pangs of conscience.
44. Id.
45. Most state statutes explicitly recognize public safety as a goal of juvenile justice. See, e.g., IDAHO CODE ANN. § 20-501 (2004) ("[T]he primary purpose of this act is to provide a continuum of programs which emphasize the juvenile offender's accountability for his actions while assisting him in the development of skills necessary to function effectively and positively in the community in a manner consistent with public safety.") ; VA. CODE ANN. § 16.1-227 (l) - (4) (2001) (stating that the purpose of the juvenile justice system is "[t]o divert..., consistent widi the protection of the public safety, those children who can be cared for or treated through alternative programs" and "[t]o protect the community against those acts of its citizens, both juveniles and adults, which are harmful to others and to reduce the incidence of delinquent behavior and to hold offenders accountable for their behavior").
46. A second reason transfer would not occur in a prevention regime is the empirical finding that placing juveniles with adults increases recidivism. See infra text accompanying note 98 (reviewing research concerning the effects of juvenile incarceration on recidivism).
47. In any event, the legality principle counsels that conduct that does not amount to crime cannot be the basis for coercive state action. See infra text accompanying notes 195-96 (discussing the principle of legality).
48. See Jahnke v. State, 682 P.2d 991, 1010-11 (Wyo. 1984) (affirming the manslaughter conviction in adult court of a sixteen-year-old boy for killing his abusive father).
49. Much of this review is derived from Mark R. Fondacaro & Lauren G. Fasig, Judging Juvenile Responsibility: A Social Ecological Perspective, in HANDBOOK, supra note 30, at 355;
50. see also SURCEON GENERAL REPORT, supra note 27, 41-152 (discussing the developmental risk factors for youth violence, as well as methods of preventing youth violence).
51. See infra Part III A (discussing psychological factors).
52. See infra Part III. B (discussing contextual factors).
53. See infra Part III. C (discussing the implications of risk assessment).
54. Laurence Steinberg & Elisabeth Cauffman, A Developmental Perspective on Jurisdictional Boundary, in CHANGING BORDERS, supra note 19, at 379, 394.
55. Nuno Ferreira, Putting the Age of Criminal and Tort Liability into Context: A Dialogue Between Law and Psychology, 16 INT'L J. CHILD. RTS. 29, 35, 36 (2008);
56. see also LAWRENCE KOHLBERG, CHILD PSYCHOLOGY AND CHILD EDUCATION: A COGNITIVE-DEVELOPMENTAL VIEW 283 (1987) (stating that a "conventional" level of morality is reached between ages ten and twenty) ; Marie-Anne Suizzo, The Social-Emotional and Cultural Contexts of Cognitive Development: Neo-Piagetian Perspectives, 71 CHILD DEV. 846, 846 (2000) (noting that as children develop, they have a greater ability to "reflect on their emotions, consider others' perspectives, and inhibit or plan their actions").
57. Elizabeth Cauffman & Laurence Steinberg, Researching Adolescents' Judgment and Culpability, in YOUTH ON TRIAL, supra note 37, at 325, 330-31 [hereinafter Cauffman & Steinberg, Researching Adolescents 'Judgment].
58. See Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 LAW & HUM. BEHAV. 249, 251-52 (1996) (describing the three major "attributes most often associated with mature decision making") ; see also Elizabeth Cauffman & Laurence Steinberg, (Im) maturity of Judgment in Adolescence: Why Adolescents Might Be Less Culpable than Adults, 18 BEHAV. SCI. & L. 741, 744-45 (2000) [hereinafter Cauffman & Steinberg, (Im) maturity] (describing "three categories of psychosocial factors").
59. Cauffman & Steinberg, Researching Adolescents'Judgment, supra note 53, at 331-33.
60. See infra text accompanying notes 74-80 (discussing the influence of peer groups on adolescent behavior).
61. See Jari-Erik Nurmi, How Do Adolescents See Their Future? A Review of the Development of Future Orientation and Planning, 11 DEVELOPMENTAL REV. 1, 29 (1991) ("Most results show that the levels of planning, realization, and cognitive structuring concerning the future increase as adolescents grow older.") ; Elizabeth S. Scott et al., Evaluating Adolescent Decision Making in Legal Contexts, 19 LAW & HUM. BEHAV. 221, 231 (1995). Scott et al. note: Compared to adults, adolescents appear to focus less on protection against losses than on opportunities for gains in making choices[,] seem to discount the future more[,]... weigh more heavily the short-term consequences of decisions[,]... [and find it harder] to contemplate the meaning of a consequence that will be realized 10 to 15 years in the future, because such a time span is not easily made relevant to adolescent experience.
62. Id.; see also Laurence Steinberg et al., Age Differences in Sensation Seeking and Impulsivity as Indexed by Behavior and Self-Report: Evidence for a Dual Systems Model, 44 DEVELOPMENTAL PSYCHOL, 1764, 1774 (2008) (finding that sensation-seeking increases during early adolescence, peaks around age fourteen or fifteen, and then steadily declines).
63. Pravan Kambam & Christopher Thompson, The Development of Decision-Making Capacities in Children and Adolescents: Psychological and Neurological Perspectives and Their Implications for fuvenile Defendants, 27 BEHAV. SCI. & L. 173, 175 (2009) ("[A]dolescents are particularly susceptible to the potentially deleterious effects of emotions on decision-making.") ; Reed Larson, Mihaly Csikszentmihalyi & Ronald Graef, Mood Variability and the Psychosocial Adjustment of Adolescents, 9 J. YOUTH & ADOLESCENCE 469, 488 (1980) (finding that adolescents are subject to more rapid and extreme mood swings than adults).
64. Kambam & Thompson, supra note 58, at 187.
65. See generally AM. BAR ASS'n, JUVENILE JUSTICE CTR., ADOLESCENCE, BRAIN DEVELOPMENT AND LEGAL CULPABILITY (2004), available at http://www.abanet.org/crimjust/juvjus/Adolescence. pdf (discussing discoveries about differences between adolescent and adult brains). See also Jay N. Giedd et al., Brain Development During Childhood and Adolescence: A Longitudinal MRI Study, 2 NATURE NEUROSCIENCE 861, 861 (1999) (showing the net increase in "white matter" between ages four and twenty-two to be 12.4%) ; Elizabeth R. Sowell et al., In Vivo Evidence for Post-Adolescent Brain Maturation in Frontal and Striatal Regions, 2 NATURE NEUROSCIENCE 859, 860 (1999) (reporting "large group differences" between adults and adolescents in terms of frontal lobe maturation).
66. See Monique Ernst et al., Amygdala and Nucleus Accumbens in Responses to Receipt and Omission of Gains in Adults and Adolescents, 25 NEUROIMAGE 1279, 1289 (2005) (finding an "agerelated pattern of regional brain activation [that] may explain the propensity for risk-taking and novelty-seeking behaviors in adolescents") ; Adriana Galvan et al., Earlier Development of the Accumbens Relative to Orbitofrontal Cortex Might Underlie Risk-Taking Behavior in Adolescents, 26 J. NEUROSCIENCE 6885, 6891 (2006) (suggesting that the adolescent's neural framework is similar to that which explains addiction, in that the prefrontal cortex is "'hijacked' by an impulsive subcortical system, which might render it unable to appropriately modulate decisions in the context of future consequences") ; see also Brian Bower, Teen Brains on Trial: The Science of Neural Development Tangles with the Juvenile Death Penalty, 165 SCI. NEWS 299, 300 (2004), available at http://www.findarticles.com/p/articles/mi-ml200/is-19-165/ai-n6110300/?tag= content;coll (describing brain research that suggests that, in order to obtain the same "motivational boost" that adults have to seek rewards, teens need the stimulus from risky behavior). See generally B. J. Casey, Sarah Getz & Adriana Galvan, The Adolescent Brain, 28 DEVELOPMENTAL REV. 62, 70 (2008) (hypothesizing that the difference between adolescents on the one hand and preteens and adults on the other is an evolutionary response to the need for adolescents to leave the family and find a mate) ; Charles Geier & Beatriz Luna, The Maturation of Incentive Processing and Cognitive Control, 93 PHARMACOLOGY BIOCHEMISTRY & BEHAV. 212, 212 (2009) (correlating age with control of behavior).
67. Laurence Steinberg, Adolescent Development and Juvenile fustice, 5 ANN. REV. CLINICAL PSYCHOL. 459, 466 (2009).
68. See Jennifer L. White et al., Measuring Impulsivity and Examining Its Relationship to Delinquency, 103 J. ABNORMAL PSYCHOL. 192, 202 (1994) (finding a "striking" relationship between "behavioral impulsivity" and delinquency, as well as a relationship between "cognitive impulsivity and delinquency, but one which was not independent of IQ").
69. See Cauffman & Steinberg, (Im) maturity, supra note 54, at 757 ("It is important to remember that responsibility, perspective, and temperance-the three components of maturity of judgment studied here-are more predictive of antisocial decision-making than chronological age alone. Indeed, psychosocially mature 13-year-olds demonstrate less antisocial decision-making than psychosocially immature adults.").
70. Charles W. Mathias, Dawn M. Marsh-Richard & Donald M. Dougherty, Behavioral Measures of Impulsivity and the Law, 26 BEHAV. SCI. & L. 691, 697 (2008).
71. June Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 DEVELOPMENTAL REV. 339, 344 (1992).
72. Deborah Gorman-Smith et al., A Developmental-Ecological Model of the Relation of Family Functioning to Patterns of Delinquency, 16 J. QUANTITATIVE CRIMINOLOGY 169, 170 (2000) ("Family functioning has consistently been among the strongest predictors of risk for delinquent and criminal behavior.").
73. Id. at 170-71. See generally Robert D. Laird et al., Parents' Monitoring-Relevant Knowledge and Adolescents' Delinquent Behavior: Evidence of Correlated Developmental Changes and Reciprocal Influences, 74 CHILD DEV. 752, 765 (2003) (describing the benefits of proactive parenting).
74. ROLF LOEBER ET AL., U. S. DEP'T OFJUSTICE, cHILD DELINQUENCY: EARLY INTERVENTION AND PREVENTION 1-14 (2003), available at http://www.ncjrs.gov/pdfflesl/ojjdp/186162.pdf; Cathy Spatz Widom & Helen W. Wilson, How Victims Become Offenders, in CHILDREN AS VICTIMS, WITNESSES, AND OFFENDERS: PSYCHOLOGICAL SCIENCE AND THE LAW 255, 256-58 (Bette L. Bottoms, Cynthia J. Najdowski & Gail S. Goodman eds., 2009) (describing research showing a relationship between violence and both physical abuse and nonphysical abuse).
75. Gorman-Smith et al., supra note 67, at 187-88 (noting, however, that even children of "exceptionally functioning" families might be at slightly higher risk for minor chronic offending if they are from poorer neighborhoods).
76. Benjamin B. Lahey et al., Psychopathology in the Parents of Children with Conduct Disorder and Hyperactivity, 27 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 163, 166-67 (1988) ("The present results strongly support previous findings... that children with [conduct disorders] are more likely than other clinic-referred children to have both mothers and fathers who qualify for the diagnosis of [antisocial personality disorder] and to have fathers who abuse substances.").
77. Gerald R. Patterson et al., Predicting Risk for Early Police Arrest, 8 J. QUANTITATIVE CRIMINOLOCY 335, 351 (1992) (finding that "social disadvantage makes a direct contribution" to arrest rates) ; Robert J. Sampson & W. Byron Groves, Community Structure and Crime: Testing Social-Disorganization Theory, 94 AM. J. Soc. 774, 781 (1989) (discussing how social disorganization and family disruption affect juvenile crime rates).
78. See generally Brenda K. Bryant, The Neighborhood Walk Sources of Support in Middle Childhood, 50 MONOGRAPHS SOC'Y RES. CHILD DEV. 1 (1985) (discussing sources of support from the child's perspective, including his or her external environment).
79. Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preference and Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41 DEVELOPMENTAL PSYCHOL. 625, 632 (2005) (showing the strong influence of peer behavior on juvenile risky behavior) ; Albert J. Reiss, Jr. & David P. Farrington, Advancing Knowledge About Co-Offending: Results from a Prospective Longitudinal Survey of London Males, 82 J. CRIM. L. & CRIMINOLOGY 360, 393 (1991) (finding that "the incidence of co-offending decreases with age").
80. J. DAVID HAWKINS ET AL., U. S. DEP'T OF JUSTICE, PREDICTORS OF YOUTH VIOLENCE 1, 5 (2000), available at http://www.ncjrs.gov/pdffilesl/ojjdp/179065.pdf (analyzing peer-related factors) ; Thomas J. Dishon et al., Antisocial Boys and Their Friends in Early Adolescence: Relationship Characteristics, Quality, and Interactional Process, 66 CHILD DEV. 139, 139-40 (1995) ("[C]hildren are attracted to those most like themselves (i.e., social choice), particularly with respect to aggressive behavior in middle childhood.") ; Laura V. Scaramella et al., Evaluation of a Social Contextual Model of Delinquency: A Cross-Study Replication, 73 CHILD DEV. 175, 189 (2002) (showing a relationship between deviant peer relationships and antisocial behavior in the community, but not in the home).
81. Jeffrey Fagan, Contexts of Choice by Adolescents in Criminal Events, in YOUTH ON TRIAL, supra note 37, at 371, 373 (discussing the role of peers in adolescent crime) ; see Thomas J. Berndt, Developmental Changes in Conformity to Peers and Parents, 15 DEVELOPMENTAL PSYCHOL. 608, 614-15 (1979) (showing peer conformity between grades three and twelve peaks at grade nine) ; Scott et al., supra note 57, at 230 (explaining that "adolescents are believed to have a greater inclination to respond to peer influence than do adults").
82. Joan McCord & Kevin P. Conway, Patterns of Juvenile Delinquency and Co-Offending, in 10 ADVANCES IN CRIMINOLOGICAL THEORY: CRIME & SOCIAL ORGANIZATION 15, 16 (Elin J. Waring & David Weisburd eds., 2002) ; see Franklin E. Zimring, Kids, Groups and Crime: Some Implications of a Well-Known Secret, 72 J. CRIM. L. & CRIMINOLOGY 867, 867 (1981) ("The 'well-known secret' is this: adolescents commit crimes, as they live their lives, in groups.").
83. Berndt, supra note 76, at 615 ("[I]n both studies conformity to peers on antisocial behavior increased greatly between third and ninth grades, and then declined.") ; Scaramella et al., supra note 75, at 189.
84. LOEBER ET AL., supra note 69, at 7-8.
85. See Terrie E. Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior A Developmental Taxonomy, 100 PSYCHOL. REV. 674, 687-88 (1993) (noting that adolescents who want "to prove their maturity" are likely to emulate "life-course-persistents" (criminal perpetrators) because the latter's lifestyle resembles adulthood more than childhood).
86. Devon D. Brewer et al., Preventing Serious, Violent, and Chronic Juvenile Offending: A Review of Evaluations and Selected Strategies in Childhood, Adolescence, and the Community, in A SOURCEBOOK: SERIOUS, VIOLENT, & CHRONICJUVENILE OFFENDERS 61, 64 (James C. Howell et al. eds., 1995) ; Margit Wiesner & M. Windle, Assessing Covariates of Adolescent Delinquency, 33 J. YOUTH & ADOLESCENCE 431, 439-40 (2004).
87. J. David Hawkins et al., A Review of Predictors of Youth Violence, in SERIOUS AND VIOLENT JUVENILE OFFENDERS: RISK FACTORS AND SUCCESSFUL INTERVENTIONS 106, 127-28 (Rolf Loeber & David P. Farrington eds., 1998) (noting studies that identify low commitment and attachment to school and low occupational expectations as predictors of youth violence). 83
88. Todd I. Herrenkohl et al., School and Community Risk Factors and Interventions, in CHILD DELINQUENTS: DEVELOPMENT, INTERVENTION, AND SERVICE NEEDS, at 211, 216-21 (Rolf Loeber & David Farrington eds., 2001) (discussing, inter alia, research showing correlations between student-teacher relations, and discipline and antisocial behavior). See generally Allison Ann Payne, A Multilevel Analysis of the Relationships Among Communal School Organization, Student Bonding and Delinquency, 45 J. RES. CRIME & DEUNQ. 429 (2008) (discussing the relationship between school organization, peer relationships and antisocial behavior).
89. See generally URIE BRONFENBRENNER, THE ECOLOGY OF HUMAN DEVELOPMENT: EXPERIMENTS BY NATURE AND DESIGN (1979) (utilizing an "ecological systems" model as a framework for examining otherwise inextricable factors present in individuals' developmental environment).
90. LOEBER ET AL., supra note 69, at 8 (summarizing research concerning poverty and juvenile crime) ; Robert J. Sampson et al., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, 277 SCI. 919, 923 (1997) (noting that social cohesion and trust correlated robustly with reduced violence). See generally Carter Hay et al., Compounded Risk: The Implications for Delinquency of Coming from a Poor Family that Lives in a Poor Community, 36 J. YOUTH & ADOLESCENCE 593 (2007) (showing high correlation between poor neighborhoods, parental unemployment, and crime) ; Tama Leventhal & Jeanne Brooks-Gunn, The Neighborhoods They Live In: The Effects of Neighborhood Residence on Child and Adolescent Outcomes, 126 PSYCHOL. BULL. 309 (2000) (reviewing research on how a child's neighborhood affects his or her well-being).
91. Donald R. Lynam et al., The Interaction Between Impulsivity and Neighborhood Context on Offending: The Effects of Impulsivity Are Stronger in Poorer Neighborhoods, 109 J. ABNORMAL PSYCHOL. 563, 570 (2000).
92. Fagan, supra note 76, at 371, 375.
93. See ROBERT J. SAMPSON & JOHN H. LAUB, CRIME IN THE MAKINC: PATHWAYS AND TURNING POINTS THROUGH LIFE 21 (1993) (finding that "changes that weaken social bonds will lead to more crime and deviance") ; Delbert S. Elliot et al., The Effects of Neighborhood Disadvantage on Adolescent Development, 33 J. RES. CRIME & DEUNQ. 389, 417-18 (1996) (finding that "aggression rates... [are] largely mediated by level and form of neighborhood organization") ; Leventhal & Brooks-Gunn, supra note 85, at 319-20 (studying the link between neighborhood and behavioral patterns) ; Sampson et al., supra note 85, at 923 (noting that social cohesion and trust correlate with reduced violence).
94. Gorman-Smith et al., supra note 67, at 192 (stating that children in "exceptionally functioning" families "are less likely to show any pattern of delinquency and are most protected from (under-represented in) the most serious [neighborhood] patterns").
95. Craig A. Anderson et al., The Influence of Media Violence on Youth, 4 PSYCHOL. SCI. PUB. INT. 81, 81 (2003).
96. Brad J. Bushman, Moderating Role of Trait Aggressiveness in the Effects of Violent Media on Aggression, 69 J. PERSONALITY & SOC. PSYCHOL. 950, 959 (1995).
97. L. Rowell Huesmann et al., Longitudinal Relations Between Children's Exposure to TV Violence and Their Aggressive and Violent Behavior in Young Adulthood: 1977-1999, 39 DEVELOPMENTAL PSYCHOL. 201, 215 (2003) ("In this 15-year longitudinal study of 329 youth, we found Uiat children's TV-violence viewing between ages 6 and 9, children's identification with aggressive same-sex TV characters, and children's perceptions that TV violence is realistic were significantly correlated with their adult aggression. ").
98. SAMPSON & LAUB, supra note 88, at 21 (stating that "changes that strengthen social bonds to society in adulthood will lead to less crime and deviance").
99. Kirk R. Williams & Richard Hawkins, Perceptual Research on General Deterrence: A Critical Review, 20 LAWamp;SOC'Y REV. 545, 561-66 (1986).
100. see lEENA aUGIMERI ET AL., eARLY aSSESSMENT rISK lIST FOR bOYS: eARl-20b, vERSION 2 (2001) ; RANDY BORUM ET AL., MANUAL FOR THE STRUCTURED ASSESSMENT OF VIOLENCE RISK IN YOUTH ("SAVRY") 5 (2007) (explaining that the SAVRY assesses adolescents' risk for violence by analyzing twenty-four items that commonly lead to adult violence).
101. ROBERT HOGE & DANIEL ANDREWS, THE YOUTH LEVEL OF SERVICE/CASE MANAGEMENT INVENTORY MANUAL (2006) (analyzing juveniles' risk factors in an effort to determine targets for treatment among adult offenders) ; John F. Edens et al.. Youth Psychopathy and Criminal Recidivism: A Meta-Analysis of the Psychopathy Checklist Measures, 31 LAW & HUM. BEHAV. 53, 55-56 (2007). See generally Anne-Marie R. Leistico & Randall T. Salekin, Testing the Reliability and Validity of the Risk, Sophistication-Maturity, and Treatment Amenability Instrument (RST-i) : An Assessment Tool for Juvenile Offenders, 2 INT'LJ. FORENSIC MENTAL HEALTH 101 (2003), available at http://www.iafmhs.org/files/Leistico.pdf (studying the reliability of the RST-i in juvenile males).
102. See CHRISTOPHER SLOBOGIN, PROVING THE UNPROVABLE: THE ROLE OF LAW, SIENCE AND SPECULATION IN ADJUDICATING CULPABILITY AND DANGEROUSNESS 101-08 (2007) [hereinafter SLOBOGIN, PROVING THE UNPROVABLE] (describing prediction methodologies and their relative advantages).
103. Mark W. Lipsey & Francis T. Cullen, The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews, 3 ANN. REV. L & SOC. SCI. 297, 302-06 (2008) ; see also Donna Bishop et al., The Transfer of Juveniles to Criminal Court: Does it Make a Difference?, 42 CRIME & DELINQ. 171, 183 (1996) (finding "transfer actually aggravated short-term recidivism") ; BARRY HOLMAN & JASON ZIEDENBERG, JUSTICE POLICY INST., THE DANGERS OF DETENTION: THE IMPACT OF INCARCERATING YOUTH IN DETENTION AND OTHER SECURE FACILITIES 4-6 (2006), available at http://www.cljj.org/Pdf/116-JPI008-DOD-Report.pdf (reporting studies finding that commitment to youth facilities (1) vastly increases the chances of recidivism-more so than membership in a gang, carrying a weapon, or a poor parental relationship; (2) promotes "peer deviancy training;" (3) and impedes the aging-out process that normally diminishes criminal behavior) ; Redding, Adult Punishment, in HANDBOOK, supra note 30, at 375, 389 ("The available evidence, while not definitive, strongly suggests that transferring juveniles to the criminal court increases the recidivism rate.").
104. Mark W. Lipsey, The Primary Factors That Characterize Effective Interventions with Juvenile Offenders: A Meta-Analytic Review, 4VICTIMS& OFFENDERS, 124, 143 (2009).
105. Don A. Andrews et al., Does Correctional Treatment Work? A Clinically Relevant and Psychologically Informed Meta-Analysis, 28 CRIMINOLOGY 369, 369, 376, 379 (1990). See generally Mark W. Lipsey, Juvenile Delinquency Treatment: A Meta-Analytic Inquiry into the Variability of Effects, in META-ANALYSIS FOR EXPLANATION 83 (Thomas D. Cook et al. eds., 1992) (analyzing the measured effects of various delinquency treatments).
106. See generally William M. Bolman, Toward Realizing the Prevention of Mental Illness, in 1 PROGRESS IN COMMUNITY MENTAL HEALTH 203, 208 (L. Bellack & H. H. Barten eds., 1969) ("From the standpoint of the community, these distinctions are equivalent to reducing incidence, prevalence and extent of disability respectively."). These concepts are redefined in the juvenile context in SURGEON GENERAL REPORT, supra note 27, at 105-19.
107. SURGEON GENERAL REPORT, supra note 27, at 105-06.
108. Id.at 111.
109. Id. at 114.
110. See supra text accompanying notes 42-46 (discussing the two models' different intervention approaches).
111. See generally Moffitt, supra note 80, at 676 (contrasting "life-course persistent" offenders with "adolescent-limited" offenders). "Life-course persistent" offenders are persons that "engag[e] in antisocial behavior of one sort or another at every stage of life." Id. "Adolescentlimited" offenders are persons with "crime careers of shorter duration". Id.
112. James F. Alexander & Bruce V. Parsons, Short-Term Behavioral Intervention with Delinquent Families: Impact on Family Process and Recidivism, 81 J. ABNORMAL PSYCHOL. 219, 219-25 (1973).
113. See James F. Alexander et al., Family-Based Interventions with Older, At-Risk Youth: From Promise to Proof to Practice, 21 J. PRIMARY PREVENTION 185, 193-97 (2000) (describing components of the program).
114. WASH. STATE INST, FOR PUB. POLICY, OUTCOME EVALUATION OF WASHINGTON STATE'S RESEARCH-BASED PROGRAMS FOR JUVENILE OFFENDERS 1 (2004), available at http://www.wsipp. wa.gov/rptfiles/04-01-1201-ES.pdf. See generally Nancy G. Guerra et al., What Works: Best Practices with Juvenile Offenders, in TREATING THE JUVENILE OFFENDER 79 (Robert D. Hoge et al. eds., 2008) (discussing effective juvenile offender treatment programs, including FFT).
115. SCOTT W. HENGGELER ET AL., MULTISYSTEMIC TREATMENT OF ANTISOCIAL BEHAVIOR IN CHILDREN AND ADOLESCENTS 237-52 (1998).
116. Id.
117. Charles M. Borduin et al., Multisystemic Treatment of Serious Juvenile Offenders: Long-Term Prevention of Criminality and Violence, 63 J. CONSULTING & CLINICAL PSYCHOL. 569, 573 (1995).
118. Cindy M. Schaeffer & Charles M. Borduin, Long-Term Follow-Up to a Randomized Clinical Trial of Multisystemic Therapy with Serious and Violent Juvenile Offenders, 73 J. CONSULTING & CLINICAL PSYCHOL. 445, 448 (2005).
119. Scott W. Henggeler et al., Multisystemic Therapy with Violent and Chronic Juvenile Offenders and Their Families: The Role of Treatment Fidelity in Successful Dissemination, 65 J. CONSULTING & CLINICAL PSYCHOL. 821, 829 (1997).
120. MST Servs., Cost Effectiveness, http://www.mstservices.com/cost-
121. Patricia Chamberlain & John B. Reid, Comparison of Two Community Alternatives to Incarceration for Chronic fuvenile Offenders, 66 J. CONSULTING & CLINICAL PSYCHOL. 624, 624-25 (1998).
122. Id. at 630.
123. Borduin et al., supra note 112, at 573 (indicating that after four years the recidivism rate for those who successfully completed MST was 22.1% and for those who dropped out of MST was 46.6%) ; OFFICE OF PROGRAM POLICY ANALYSIS & GOV'T ACCOUNTABILITY, No. 09-27, REDIRECTION SAVES $36.4 MILLION AND AVOIDS $5.2 MILLION IN RECOMMITMENT AND PRISON COSTS 2-3 (2009) [hereinafter OFFICE OF PROGRAM POLICY ANALYSIS] (comparing youthful offenders handled through a community-based, family-centered program to youthful offenders with similar criminal history handled through alternative, primary residential programs, and finding that the probability of arrest for the former group was twenty-five percent less for any violation, forty-six percent less for any felony, and forty-eight percent less for violent felonies) ; Schaeffer & Bourduin, supra note 113, at 448 (indicating that over thirteen years the recidivism rate for those who completed MST was fifty percent, compared to eighty-one percent for those who did not).
124. HENCGELER ET AL., supra note 110, at 252;
125. MST Servs., Multisystemic Therapy: Clinical Outcome and Cost Savings, http://www.mstservices.com/outcomes-la.pdf (last visited Oct. 22, 2009);
126. see also OFFICE OF PROGRAM POLICY ANALYSIS, supra note 118, at 3 (finding that a community-based program saved the state $36.4 million in residential costs and $5.2 million in recommitment and prison costs).
127. For instance, thirty-one states have MST teams in one or more jurisdictions. See MST Services, Licensed Teams by Location, http://mstservices.com/licensed-teams-by-location. php (last visited Oct. 22, 2009).
128. Kansas v. Hendricks, 521 U. S. 346 (1997).
129. WAYNE R. LAFAVE, CRIMINAL LAW 485-86 (4th ed. 2003).
130. See generally FRANKLIN E. ZIMRING, AMERICAN JUVENILE JUSTICE 35-38 (2005) (discussing the "diversionary" and "interventionist" motivations for juvenile justice) ; Frederic L. Faust & Paul J. Brantingham, Part I-Modeb of Juvenile Justice-Introduction and Overview, in JUVENILE JUSTICE PHILOSOPHY: READINGS, CASES AND COMMENTS 3 (Frederic L. Faust & Paul J. Brantingham eds., 2d ed. 1979) (explaining the juvenile court's assumption that "children were infinitely malleable, the best possible subjects for the new social sciences to work wonders upon").
131. O'Connor v. Donaldson, 422 U. S. 563 (1975).
132. Id. at 575.
133. Id.
134. Pierce v. Soc'y of Sisters, 268 U. S. 510 (1925).
135. Id. at 535.
136. In Parham v. JR., 442 U. S. 584 (1979), the Supreme Court held that even when parents are willing to commit their children a neutral factfinder must find, at least, that the child needs treatment in a hospital. The Court did not specifically decide whether "need for treatment" is a permissible criterion for commitment. But other courts, in both the adult and juvenile contexts, have rejected that standard to the extent it permits hospitalization on a bare diagnosis. See, e.g., Johnson v. Solomon, 484 F. Supp. 278, 287 (D. Md. 1979) (requiring danger to self or others before commitment of juveniles) ; Matter of Commitment of N. N., 679 A.2d 1174, 1187 (N. J. 1996) (requiring clear and convincing evidence of mental illness, need for inpatient treatment, and "danger to the minor herself or to others, which may include the substantial likelihood of significant developmental harm if that treatment is not provided" for commitment of minors under fourteen) ; Boggs v. N. Y. City Health & Hosp. Corp., 132 A. D.2d 340, 362 (N. Y. App. Div. 1987) ("It is well-established in this state that a person may be involuntarily confined for care and treatment, where his or her mental illness manifests itself in neglect or refusal to care for themselves to such an extent that there is presented 'serious harm' to their own well-being.") ; State ex rel Hawks v. Lazaro, 202 S. E.2d 109, 123 (W. Va. 1974) (holding that involuntary hospitalization is permitted only "when it can be demonstrated that an individual has a self-destructive urge and will be violent towards himself, or alternatively that he is so mentally retarded or mentally ill that by sheer inactivity he will permit himself to die either of starvation or lack of care").
137. See generally STANDARDS, supra note 36 (discussing the diminished blameworthiness of juveniles and proposing a separate juvenile justice system).
138. See generally Zimring, in YOUTH ON TRIAL, supra note 37, at 271 (arguing that immaturity should be a mitigating factor for juvenile offenders).
139. See also Redding, Adult Punishment, supra note 30, at 389 ("Punishment that is proportional to the offender's culpability should be at the heart of the justice system."). See generally ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE (2008) (advocating a separate juvenile justice system based on a diminished culpability rationale).
140. Roper v. Simmons, 543 U. S. 551, 571 (2005).
141. Id. at 568 ("Capital punishment must be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution. '").
142. see, e.g., fRANKLIN e. zIMRING, cONFRONTING yOUTH cRIME: rEPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON SENTENCING POLICY TOWARD YOUNG OFFENDERS 80-81 (1978) (analogizing the diminished responsibility of adolescents to the "partial responsibility" of people with mental disability who receive "mitigations of punishment").
143. U. S. SENTENCING GUIDELINES MANUAL § 5K2.13 (2008).
144. Id. § 5H1.3.
145. United States v. Maldonado-Montalvao, 356 F.3d 65, 74 (1st Cir. 2003).
146. Michael L. Perlin & Keri K. Gould, Rashomon and the Criminal Law: Mental Disability and the Federal Sentencing Guidelines, 22 AM. J. CRIM. L. 431, 447 (1995) ; see also Ellen Fels Berkman, Mental IUness as an Aggravating Circumstance in Capital Sentencin g 89 COLUM. L. REV. 291, 298 (1989) ("Even though courts and legislatures generally consider mental disorders to be a mitigating factor, many death row inmates are mentally ill.") ; Developments in the Law: The Law of Mental IUness, 121 HARV. L. REV. 1114, 1133 (2008) (stating that courts "have imposed prison sentences beyond what the Guidelines recommend on some mentally ill offenders they view as dangerous or in need of treatment instead of supplementing Guidelines sentences as necessary with civil commitment").
147. See, e.g., United States v. Mata-Vasquez, 111 F. App'x 986, 988 (10th Cir. 2004) (allowing a "four-level" reduction, based on IQ of fifty-one and other impairments, reducing sentence by six to twelve months) ; United States v. Cotto, 793 F. Supp. 64, 65-68 (E. D. N. Y. 1992) (allowing a "four-level" reduction, based on low IQ and drug use, that reduced the sentence from thirty-seven months to twenty-four months).
148. NORA V. DEMLEITNER ET AL., SENTENCING LAW AND POLICY: CASES, STATUTES AND GUIDELINES 404 (2d ed. 2007) ("At common law those with severe mental impairments could be excused from guilt altogether, but offenders with lesser impairments would usually be subject to the same punishments as mentally sound offenders" while modern statutes require that mental illness "'significantly reduced the defendant's culpability for the offense.'") (quoting N. C. GEN. STAT. § 15A-1340.16 (e) (4) (2007)) ; see also John Q. La Fond & Mary L. Durham, Cognitive Dissonance: Have Insanity Defense and Civil Commitment Reforms Made a Difference, 39 VILL. L. REV. 71, 102-03 (1994) (noting that offenders found guilty but mentally ill often receive longer sentences man those found simply guilty).
149. See generally CHRISTOPHER SLOBOGIN, MINDING JUSTICE: LAWS THAT DEPRIVE PEOPLE with MENTAL DISABILITY OF LIFE AND LIBERTY 80-83 (2006) [hereinafter SLOBOGIN, MINDING JUSTICE] (noting mat mitigation based on less-severe mental disorders could potentially "swallow up the death penalty").
150. See, e.g., State v. Eggers, 160 P.3d 1230, 1247-49 (Ariz. Ct. App. 2007) (depublished) ; State v. Craig, 944 So. 2d 660, 662-64 (La. Ct. App. 2006), cert. denied, 128 S. Ct. 714 (2007) (upholding defendant's sentence under the state and federal constitutions) ; Commonwealth v. Wilson, 911 A.2d 942, 946 (Pa. Super. Ct. 2006) (affirming the denial of Wilson's petition for relief) ; State v. Pittman, 647 S. E.2d 144, 163-64 (S. C. 2007) (finding that defendant's sentence did not violate the U. S. Constitution) ; State v. Rideout, 933 A.2d 706, 713-20 (Vt. 2007) (upholding juvenile defendant's sentence). See generally Hillary J. Massey, Note, Disposing of Children: The Eighth Amendment and Juvenile Life Without Parole After Roper, 47 B. C. L. Rev. 1083 (2006) (describing similar cases). But see In re Nunez, 93 Cal. Rptr. 3d 242, 264 (Cal. Ct. App. 2009) (holding that a child of fourteen convicted of a non-violent kidnapping cannot be sentenced to life without parole). As this Article was going to press, the Supreme Court was slated to hear arguments in two cases involving this issue and was expected to hand down its decision by the end of the 2009-2010 Term. See Graham v. Florida and Sullivan v. Florida, 129 S. Ct. 2157 (2009) (granting writs of certiorari).
151. See generally Manduley v. Superior Cl, 41 P.3d 3 (Cal. 2002) (upholding a California statute mat allows prosecutors to charge minors in criminal court rather than juvenile court) ; State v. Behl, 564 N. W.2d 560 (Minn. 1997) (upholding the conviction of a juvenile who was tried as an adult under Minnesota's automatic-certification statute).
152. Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85 NOTRE DAME L. REV. (forthcoming 2009) (manuscript at 66, on file with authors).
153. Id. at 25.
154. State v. Heinemann, 920 A.2d 278, 297 (Conn. 2007).
155. SCOTT & STEINBERG, supra note 132, at 131-39.
156. Id.
157. U. S. SENTENCING GUIDEUNES MANUAL § 5K2.12 (2008) (permitting a reduction in sentence for "coercion and incomplete duress", but "ordinarily" only when the coercion results from a physical threat to person or property).
158. See, e.g., United States v. Lopez, 264 F.3d 527, 530-31 (5th Cir. 2001) (discussing how the trial court was willing to depart downward on the basis of duress and "extraordinary family responsibilities" from 135 to 108 months).
159. See Fed. R. EVID. 404 (a) (1) (permitting evidence of character only to show that the person "acted in conformity therewith on a particular occasion" and then only under limited circumstances).
160. The U. S. Sentencing Guidelines provide that "prior good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range", and that "lack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds for imposing a sentence outside the applicable guideline range." U. S. SENTENCING GUIDELINES MANUAL §§ 5H1.11-12 (2008).
161. SCOTT & STEINBERG, supra note 132, at 118-28.
162. Scott and Steinberg make a second argument for a separate juvenile court based on research indicating that many youth are not competent to stand trial in adult court. Id. at 149-80.
163. Barry C. Feld, Juvenile and Criminal Justice Systems' Responses to Juvenile Violence, 24 CRIME & JUST. 189, 245 (1998).
164. SCOTT & STEINBERG, supra note 132, at 231.
165. Id. at 147-48.
166. Id. at 181-222.
167. Id. at 234.
168. Id. at 249.
169. MICHAEL SCHUMACHER & GWEN A. KURZ, THE 8% SOLUTION: PREVENTING SERIOUS, REPEAT JUVENILE CRIME 5 (1999) (exploring the ramifications of a study finding that 8% of firsttime juvenile offenders commit roughly fifty percent of repeat offenses) ; see also DAVID P. FARRINGTON ET AL., UNDERSTANDING AND CONTROLLING CRIME: TOWARD A NEW RESEARCH STRATECY 50-51 (1986) (describing research finding that roughly five to eight percent of chronic offenders commit over fifty percent of juvenile crime) ; MARVIN E. WOLFGANG ET AL., DELINQUENCY IN A BIRTH COHORT 88-89 (1972) (reporting research indicating that roughly five to six percent of chronic offenders commit over fifty percent of juvenile crime).
170. Kansas v. Hendricks, 521 U. S. 346 (1997). Parts of this analysis are drawn from earlier work. See Christopher Slobogin et al., A Prevention Model of Juvenile Justice: The Promise of Kansas v. Hendricks for Children, 1999 WIS. L. REV. 185, 192-204 (discussing the "rationale for a separate, prevention-oriented juvenile system that is superior to both the diminished responsibility and greater malleability explanations").
171. Hendricks, 521 U. S. at 361-62.
172. Stephen J. Schulhofer, Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws, 7 J. CONTEMP. LEGAL ISSUES 69, 85 (1996) ("' [C]ivil' deprivation of liberty is permissible only as a gap-filler, to solve problems the criminal process cannot address.").
173. Janus, supra note 13, at 211 ("The principle of criminal interstitiality would allow civil commitment... only if the individual's mental disorder rendered him or her unamenable to criminal prosecution. ").
174. See AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STATISTICAL MANUAL 686-87 (4th ed., rev. 2000) (placing the "paraphilias" in Axis II, which describes personality disorders, as compared to Axis I, which includes, inter alia, the psychoses).
175. See Bruce J. Winick, Sex Offender Law in the 1990s: A Therapeutic furisprudence Analysis, 4 PSYCHOL. PUB. POL'Y& L. 505, 524 (1998). Winick notes: People diagnosed with pedophilia do not molest children in the presence of police officers or in other situations presenting a high likelihood of apprehension. Rather, they act with stealth, deception, and premeditation in an effort to avoid detection. This is purposeful, planned, and goal-directed conduct, not spontaneous and uncontrollable action or action that is substantially beyond the individual's ability to avoid.
176. Id.
177. Id. at 525 (stating that paraphilias "neither render individuals incompetent to engage in rational decision making nor make them unable to resist their strong desires to molest children or otherwise to act out sexually").
178. Kansas v. Hendricks, 521 U. S. 346, 358 (1997).
179. Kansas v. Crane, 534 U. S. 407, 413 (2002).
180. W. Lawrence Fitch, Sex Offender Commitment in the United States: Legislative and Policy Concerns, 989 ANNALS N. Y. ACAD. SCI. 489, 494 (2003) (stating that only twelve percent of those committed are diagnosed with a "serious mental illness", and the rest have personality disorders like paraphilia and antisocial personality disorder).
181. Hendricks, 521 U. S. at 368-69. The court stated: Where the State has "disavowed any punitive intent"; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards;... recommended treatment if such is possible, and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent
182. Id. (emphasis added).
183. Id.
184. See supra Part III. A (discussing the psychological factors that have some bearing on judgments of juvenile responsibility).
185. SCOTT & STEINBERG, supra note 132, at 140-41.
186. Roper v. Simmons, 543 U. S. 551, 571 (2005).
187. See Massey, supra note 143, at 1089-91 (describing how a significant majority of states still have life-without-parole sentences for juveniles).
188. Roper, 543 U. S. at 571.
189. Elizabeth S. Scott, Criminal Responsibility in Adolescence: Lessons from Development Psychology, in YOUTH ON TRIAL, supra note 37, at 291, 306.
190. Id.; see also SCOTT & STEINBERG, supra note 132, at 132-33.
191. Transfer statutes permit trial of juvenile offenders as adults, while blended sentences allow courts to impose adult-type sentences on juveniles who reach majority. Transfer of juveniles increased seventy percent between 1985 and 2000. Redding, Adult Punishment, supra note 30, at 377. At least twenty states have blended sentencing laws. Redding & Howell, supra note 32, at 151.
192. SCOTT & STEINBERG, supra note 132, at 281.
193. See Barefoot v. Estelle, 463 U. S. 880, 920-23 (1983) (discussing the unreliability of long-term predictions of future criminal behavior).
194. Robert Martinson, What Works? Questions and Answers About Prison Reform, 35 PUB. INT. 22, 48-50 (1974). According to Francis Allen, Martinson's conclusion-that most offender treatment programs had a negligible impact on recidivism reduction-had "an immediate and widespread impact." FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE 57 (1981).
195. Christopher Slobogin, The Civilization of the Criminal Law, 58 VAND. L. REV. 121, 130-57 (2005) ; Christopher Slobogin, A Jurisprudence of Dangerousness, 98 NW. U. L. REV. 1, 6-11 (2003).
196. See supra text accompanying notes 98-120 (discussing different types of intervention and treatment programs and their effects on recidivism rates).
197. The best effort in this regard to date comes from Paul Robinson, who describes the high level of agreement among students regarding just deserts in Paul H. Robinson, Intuitions of Justice: Implications for Criminal Law and Justice Policy, 81 S. CAL. L. REV. 1 (2007). But he also notes that there is disagreement about the rank order of even the core crimes, that punishment using this methodology will depend upon a majority vote, and that the absolute punishment will still vary substantially depending on the maximum penalty (e.g., the death penalty versus fifteen years) that one is willing to countenance. Id. at 37-38.
198. See SLOBOGIN, PROVING THE UNPROVABLE, supra note 97, at 40-48 (describing the difficulties associated with ascertaining mental state at the time of the offense).
199. Jackson v. Indiana, 406 U. S. 715, 738 (1972).
200. Kansas v. Hendricks, 521 U. S. 346, 368 (1997). For further discussion of these three limitations, see SLOBOGIN, MINDING JUSTICE, supra note 142, at 111-15.
201. Typically juvenile court dispositional jurisdiction ends at age twenty-one, although in some states it extends to age twenty-five. Robert O. Dawson, Judicial Waiver in Theory and Practice, in CHANGING BORDERS, supra note 19, at 45, 51. The differential between age and dispositional jurisdiction also allows prolonged detention of those rare offenders who are at very high risk for violent offenses. See infra text accompanying notes 204-05 (discussing the indeterminate nature of preventive schemes).
202. See SLOBOGIN, MINDING JUSTICE, supra note 142, at 141-50 (developing the proportionality and consistency principles as limits on risk assessment) ; SLOBOGIN, PROVING THE UNPROVABLE, supra note 97, at 109-29 (describing evidentiary limitations on prediction testimony).
203. Hendricks, 521 U. S. at 368-69.
204. See Connally v. Gen. Constr. Co., 269 U. S. 385, 391 (1926) ("[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.").
205. See generally John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REV. 189 (1985) (describing the rationales for the legality principle and suggesting the reduction of constraints on courts' ability to restructure penal law).
206. JOHN MONAHAN, THE CLINICAL PREDICTION OF VIOLENT BEHAVIOR 71 (1981).
207. DEAN J. CHAMPION & G. LARRY MAYS, TRANSFERRING JUVENILES TO CRIMINAL COURTS: TRENDS AND IMPLICATIONS FOR CRIMINALJUSTICE 6 (1991).
208. For instance, the Structured Assessment of Violence Risk in Youth ("SAVRY") is composed of twenty-four risk factors and six protective factors, none of which focus specifically on running away, truancy, or curfew violations. See BORUM ET AI., supra note 95, at 19-55 (explaining the evaluation criteria for each factor).
209. Similarly, some acts that are clearly risk factors, such as associating with a gang, should not, by themselves, authorize tertiary interventions because the adult system would forbid criminalizing them on constitutional grounds. Cf. Chicago v. Morales, 527 U. S. 41 (1999) (striking down an ordinance criminalizing the failure of a gang member or an associate of a gang member to disperse after a police order to do so).
210. Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978) ("[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. ").
211. See ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 41 (2007) ("[C]ontinuing the same approach to prosecution without consideration of broader notions of fairness will continue to produce the same results-inequitable treatment of victims and defendants in the criminal justice system.").
212. Cf. Adam J. Kolber, The Subjective Experience of Punishment, 109 COLUM. L. REV. 182, 186 (2009) (making mis argument).
213. See H. L. A. HART, PUNISHMENT AND RESPONSIBILITY 28-53, 180-83 (1968) (explaining that, for example, if people are not thought to be moral agents, it is unjust and absurd to allow punishment to turn on whether excusing conditions are present).
214. John Q. La Fond, Washington's Sexually Violent Predator Law: A Deliberate Misuse of the Therapeutic State for Social Control, 15 U. PUGET SOUND L. REV. 655, 705-07 (1992) (reprinting Vernon L. Quinsey, Review of the Washington State Special Commitment Center Program for Sexually Violent Predators (Feb. 1992) (unpublished manuscript)) (reporting that residents of sexual predator programs "perceive the law to be arbitrary and excessive", and have more disciplinary violations than they did in prison because of, inter alia, "[r]esident bitterness concerning the indeterminate nature of their confinement and its imposition at the end of their sentence").
215. See Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 471-77 (1997) (discussing how a criminal justice system based on just-desert principles creates shared norms).
216. Christopher Slobogin, Is Justice Just Us?: Using Social Science to Inform Substantive Criminal Law, 87 J. CRIM. L. & CRIMINOLOGY 315, 326-27 (1996).
217. See supra text accompanying notes 182-83 (discussing how the public favors more lenient sanctions for non-violent juvenile offenders) ; see also BARRY KRISBERG & SUSAN MARCHIONNA, NAT'L COUNCIL ON CRIME AND DELINQUENCY, aTTITUDES OF US VOTERS TOWARD YOUTH CRIME AND THE JUSTICE SYSTEM 3, 5 (2007), available at http://www.nccd-crc.org/nccd/pubs/zogby-feb07.pdf (presenting a poll finding that eighty-nine percent of the respondents believe that rehabilitation and treatment services can prevent future criminal acts by youth; sixty-nine percent do not think that incarcerating youth in adult facilities has a deterrent effect on youth; and eighty-one percent believe crime costs will be less in the future if money is spent on rehabilitative and treatment services now) ; SCOTT & STEINBERG, supra note 132, at 279 ("Our survey suggests that Americans are concerned about youth crime and want to reduce its incidence but are ready to support effective rehabilitative programs as a means of accomplishing that end-and indeed favor this response over imposing more punishment through longer sentences."). As a leading criminological researcher stated, "I have found very few policy makers unwilling to at least listen to the empirical research when you frame it within the context of public protection". E. J. Latessa, The Challenge of Change: Correctional Programs and Evidence-Based Practices, 3 CRIMINOLOGY & PUB. POL. 547, 549 (2004), available at http://www.uc.edu/CCJR/Articles/Evidence-Based-Practices. pdf.
218. See FOX BUTTERFIELD, aLL GOD'S CHILDREN: THE BOSKET FAMILY AND THE AMERICAN TRADITION OF VIOLENCE 226-27 (1995) (describing how public outcry over Bosket's case led to the passage of New York's Juvenile Offender Act of 1978).
219. Id.
220. See Robert Harlow et al., The Severity of Intermediate Penal Sanctions: A Psychophysical Scaling Approach for Obtaining Community Perceptions, 11 J. QUANTITATIVE CRIMINOLOCY 71, 89 (1995) (offering evidence that citizens may find alternative punishments appropriate depending on the circumstances).
221. Cf. Adam J. Kolber, How to Improve Empirical Desert, BROOK. L. REV. (forthcoming 2010) (manuscript at 19-21) available at http://ssrn. com/abstract=1457381 (noting that empiricaldesert advocates have yet to demonstrate the value of the compliance induced by empirical desert relative to the value of other consequentialist goals).
222. Barry Glassner et al., A Note on the Deterrent Effect of Juvenile vs. Adult Jurisdiction, 31 SOC PROBS. 219, 220-21 (1983) (recounting interviews with juveniles who said they were less likely to commit crime after age sixteen, when they could be treated as adults).
223. See generally Paul H. Robinson & John M. Darley, Does Criminal Law Deter? A Behavioural Science Investigation, 24 OXFORD J. LEGAL STUDS. 173 (2004) (concluding that the manipulation of criminal-law rules will generally be ineffective at achieving heightened deterrent effects).
224. David A. Anderson, The Deterrence Hypothesis and Picking Pockets at the Pickpocket's Hanging, 4 AM. L. & ECON. REV. 295, 297 (2002) ; Robinson & Darley, supra note 214, at 204.
225. Wanda D. Foglia, Perceptual Deterrence and the Mediating Effect of Internalized Norms Among Inner-City Teenagers, 34 J. RES. CRIME & DELINQ. 414, 433, 435 (1997) (finding that the threat of formal sanctions "means little to young people from economically depressed urban neighborhoods" and that "the behavior of peers has the strongest association with lawbreaking").
226. Anne L. Schneider & Laurie Ervin, Specific Deterrence, Rational Choice, and Decision Heuristics: Applications in Juvenile Justice, 71 SOC. SCI. Q. 585, 598 (1990) ("The results from this study show that juvenile offenders in six different cities in the United States did not reduce their propensity to commit crimes as a function of their perceptions of the certainty or severity of punishment"). The most substantial study concluding that harsher sanctions do have a significant effect on juvenile offending is based on finding a twenty-three percent increase in crime by eighteen-year-olds in states with a relatively harsh juvenile system and a relatively lenient adult system. Steven D. Levitt, Juvenile Crime and Punishment, 106 J. POL. ECON. 1156, 1175 (1998). Putting aside the unlikelihood that a juvenile justice system could be appreciably harsher than an adult system (the author doesn't indicate the criteria used to assign these categories), the observed increase in crime rate could easily be due to the criminogenic effects of detention in harsher juvenile regimes, rather than the result of a calculation by eighteenyear-olds that their penalty (in adult court) will be relatively more lenient now that they are subject to adult jurisdiction. Cf. David S. Lee & Justin McCrary, The Deterrence Effect of Prison: Dynamic Theory and Evidence, 34 (Princeton Working Paper No. 550, 2009), available at http://www.irs.princeton. edu/pubs/pdfs/550.pdf (finding "small deterrence effects of prison" on juvenile offenders subject to adult court jurisdiction and suggesting that Levitt's methodology conflated deterrence and incapacitation effects).
227. Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 410 (1958).
228. See, e.g., Paul H. Robinson, A Failure of Moral Conviction?, 117 PUB. INT. 40, 44 (1994) (suggesting that if a preventive approach were adopted, criminal justice might begin to "lose[] its ability to claim that offenders deserve the sentences they get[, which might dilute] its ability to induce personal shame and to instigate social condemnation").
229. TOM R. TYLER, WHY PEOPLE OBEY THE LAW 24 (2d ed. 2006) ; see also Robert Meier & Weldon Johnson, Deterrence as Social Control: The Legal and Extralegal Production of Conformity, 42 AM. SOC. REV. 292, 302 (1977) (noting that social institutions outweigh criminal law as an influence on conduct).
230. SLOBOGIN, MINDING JUSTICE, supra note 142, at 163.
231. Id. at 156-57.
232. WILBERT RLDEAU & RON WIKBERG, LIFE SENTENCES: RAGE AND SURVIVAL BEHIND BARS 132-35 (1992) ; DAVID J. ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVES IN PROGRESSIVE AMERICA 194-98 (1980).
233. BERT USEEM ET AL., INST. FOR SOC. RESEARCH, UNIV. OF N. M., SENTENCING MATTERS, BUT DOES GOOD TIME MATTER MORE? 3 (1996) (noting that corrections officials have stated that "prisons are safer, more orderly, and more productive when inmates participate in programs") ; Connie Stivers Ireland & JoAnn Prause, Discretionary Parole Release: Length of Imprisonment, Percent of Sentence Served, and Recidivism, 28 J. CRIME & JUST. 27, 44 (2005) ("[D]iscretionary parole release is the best mechanism by which rehabilitation can be meaningfully achieved, as mandatory releasees are given an automatic release date and therefore have no system incentives to seek programs and treatment to facilitate change.").
234. See, e.g., Nora V. Demleitner, Good Conduct Time: How Much and for WhomT The Unprincipled Approach of the Model Penal Code: Sentencing, 61 U. FLA. L. REV. 777, 782-96 (2009) (noting that good-time credits can dramatically increase inmate participation in rehabilitation programs, provide them incentives to cooperate with prison authorities, and give prisoners reason to believe they control their fate at least to some extent, thus enhancing their "ability to operate as independent actors"). 226. See John Q. La Fond, The Costs of Enacting a Sexual Predator Law, 4 PSYCHOL. PUB. POL'Y & L. 468, 500 (1998) (estimating that implementation of a sexual-predator statute would increase the prison population, costing $1, 007, 719, 300 over ten years).
235. See supra text accompanying note 115 (explaining that if MST is implemented properly, the result is a benefit-to-cost ratio of $28.33 for each dollar spent).
236. SURGEON GENERAL REPORT, supra note 27, at 119-21.
237. See generally G. C. N. Hall, Sexual Offender Recidivism Revisited: A Meta-Analysis of Recent Treatment Studies, 63 J. CONSULTING & CLINICAL PSYCHOL. 802 (1995) (showing modest treatment effects of sex-offender treatment programs).
238. Daniel Filler & Austin Smith, The New Rehabilitation, 91 IOWA L. REV. 951, 954 (2006) ("Across the nation, in every state, local courts are creating new juvenile tribunals that explicitly seek to treat and rehabilitate juvenile offenders.").
239. Redding & Howell, supra note 32, at 146.