Getting Tough on Juvenile Justice

Within the last thirty years the presence of adolescent offenders tried in criminal court has become increasingly commonplace. Scholars critical of this growing phenomenon have documented that the number of youth transferred to adult (criminal) court has gradually risen since the mid-1970s. Whilst the ability to transfer young offenders from the juvenile to adult court has long been an option, recent literature notes that the emergence of legislation facilitating the transfer of youth offenders to criminal court is a microcosm of a “penal turn” in criminal justice practices (Kupchik 2010). That is, laws that expanded the ability to transfer youth to adult court fit within a larger social, cultural, and political movement which sought to “get tough” on crime.

Fagan (2008), while examining the proliferation of transfer regimes, notes that the juvenile court has long had the ability to transfer young offenders to the criminal court. He highlights that decisions to evoke such policy were made on an individual basis by a judge taking into consideration background factors, rehabilitative amenability, and public safety concerns. As Kupchik (2006) states, the primary goal of the early juvenile court grew from a parens patriae ethic where the State adopted the role of a surrogate parent to re-socialize youth toward a proper and moral lifestyle. Only those cases seen as unresponsive to treatment and deemed “incorrigible” were removed from the juvenile justice system and denied the protections it afforded.

As alluded to above, the number of adolescents prosecuted in criminal court and incarcerated in adult correctional facilities has steadily increased over the last three decades. Scholars including Fagan (2008) highlight that, since the 1970s, practically all states have either passed new legislation or modified its existing laws to promote the transfer of youth offenders to the criminal court. During this time, the legitimacy of the juvenile court was threatened on a number of fronts. First, given individualized case assessments by juvenile judges, there were disparities from one case to another. Second, the court was attacked for being racially biased against minorities. Third, judges were criticized for ignoring the need for public safety by not considering the severity of the committed crime. Finally, the rising crime rates of the time represented the juvenile courts’ inability to control youth offenders (Feld, 1999). These attacks helped spawn new legislation regarding transfer policies and crime control that were distinctly at odds with the earlier progressive principles of rehabilitation and social welfare (Kupchik, 2006).

Recent theorizing, much like Garland’s (2001) work, attempts to understand contemporary crime control within large scale social, cultural, and political shifts. Garland (2001) argues that “penal welfarism” that characterized the state during the early to mid-1990s has been dismantled as it failed to secure the public from the risks connected with crime. In its place has risen a new crime control initiative that has ushered a bourgeoning “culture of control.” Related to the emergence of punitive transfer laws, Simon (2007) uncovers how politicians gather support for legislation in a new era of social governance. He proposes that, after the 1960s, the collective trust in the state to provide security and social welfare died with rising crime rates, the collapse of the progressive agenda, and fall of the New Deal political order. In order to alleviate this crisis of legitimacy, politicians and legislators exploited people’s escalating awareness and bourgeoning fear of crime as new mechanisms of coercion and control. More specifically, crime allowed politicians to frame citizens as (possible) victims to garner support for new – oftentimes more punitive – legislation. In essence, individuals become governed through crime under an increasingly penal system.

This idea becomes more evident as proponents of transfer policies situate the need for public safety and proportional punishment over the culpability of youth. In comparison to the old welfare/progressive model where youth culpability was diminished and legal recourse was given without public and political criticism, the rise of a penal model of justice made youth both responsible and accountable for their criminal acts (Fagan, 1999). The decline of rehabilitative ideal of progressive thought made room for legislative reforms that redrew the boundary between juvenile and criminal justice.

Read: Moore & Padavic. 2011. Risk Assessment Tools and Racial/Ethnic Disparities in the Juvenile Justice System. Sociology Compass

Read: Harvey. 2011. Juvenile Courts and Competency to Stand Trial. Sociology Compass