A Joint Report by:
The John K. MacIver Institute for Public Policy
The Texas Public Policy Foundation
October 23, 2013
In the United States, there is a wide consensus that children differ from adults. The very fact that each of the 50 states and Washington, D.C. have institutions designed to render judgment on cases and administer justice outside of the adult criminal court speaks to this critical distinction. Not-yet-complete cognitive development, social immaturity, and proclivity for risky behavior are elements that lead a substantial percentage of youth to behavior that, while non-serious, may run afoul of the law. Additionally, juveniles are also seen as being more amenable to rehabilitation.
The delineation of the adult and juvenile justice systems, while ever-present, is not consistent. The jurisdictional boundaries of the juvenile court, in terms of the age of the accused, varies from state to state. Currently, 37 states and the District of Columbia hold the upper boundary of the juvenile court's jurisdiction at 17 years of age, 11 (including Wisconsin) at 16, and 2 at 15.
In 1995, Wisconsin passed the Biennial Budget Act (1995 Act 27) and the Juvenile Justice Act (1995 Act 77). Among other provisions, these acts in tandem lowered the general jurisdiction of the juvenile court from 17 to 16, thereby mandating that 17 year-old offenders, once under the authority of the juvenile court, now be adjudicated in the adult criminal court.
In recent years, several states with the jurisdiction of the adult court beginning below 18 years of age have reassessed the mandatory remanding of 17 year-olds to the adult court. In 2009, the Illinois legislature brought forth a proposal that would allow misdemeanants 17 years-old and younger to be processed through the juvenile court. During the general session, fervent debate was over whether the proposal would lead to a marked decline in public safety and a spike in juvenile crime. An evaluation of immediate outcomes was conducted, finding that crime continued to decline after the law took effect.
The Illinois experience echoes the finding of the related academic literature. A lengthy and every-growing body of research offers support for processing youth through the juvenile court. In short, this research has found that: 1) policies restricting the jurisdiction of the juvenile court with the aims of general deterrence (to discourage others from offending) and/or general deterrence (to discourage the offender from reoffending) oftentimes fail to achieve the desired effect, 2) juveniles tend to have poor rehabilitation-related outcomes when processed through the adult criminal court, and 3) facilities designed for and primarily occupied by adult offenders are often dangerous, ineffective options for juveniles.
The Adult Criminal Court and the Rationale of Deterrence
The twofold logic behind the adult court having jurisdiction over 17 year-old juvenile offenders is understandable. The juvenile court, it is believed, is focused solely on rehabilitation and not on punishment of the offender, thereby granting leniency to someone who, but for a matter of days, would be under the jurisdiction of the punitive criminal court. With the pains of punishment not inflicted, the individual will likely reoffend. Further, others will see how this case was disposed of and in turn not be dissuaded from their own criminal behavior. Deterrence, both general and specific, would be ameliorated by allowing offenders 17 years of age to be processed in the juvenile justice system. However, the intended effect has not been substantiated in the academic literature.
New York, for example, enacted legislation with this rationale in mind. In 1978, following a string of violent crimes made highly-visible by media coverage, the state passed the New York Juvenile Offender Law, part of the Crime Package Bill. This legislation limited access to the juvenile court for offenders of the ages 13 through 15 accused of certain crimes and expanded the availability of transfers to the adult court.
This legislation did not beget the drop in crime expected. A 1988 study by Simon Singer and David McDowall using an interrupted time series analysis containing 56 months of data before and 76 months after the enactment of the law. Focusing specifically on cohort-specific arrest rates of homicides, assaults, robberies, rapes, and arsons, the authors concluded that the arrest rates for most of these offenses remained constant or increased over the time period of the study. The only statistically significant decline observed was in the arrest rate for rapes, although a corresponding decline was observed in the control series. This specific decline, then, was considered attributable more to a nationwide trend than to the law itself.
This absence of effect has been observed in other jurisdictions that sought to restrict access to the juvenile court. In 1981, Idaho attempted to address the growing concern over juvenile crime by enacting a mandatory transfer statute. Using methodology similar to the analysis, Eric Jensen and Linda Metsger found that no drop in crime that was attributable to that statute and, notably, that the enactment of the law preceded an 18 percent increase in arrest rates for violent index crime offenses. This increase is contrary to the significant decreases in Montana and Wyoming, the study's comparison series.
In 1994, the State of Georgia sought to restrict access to the juvenile court for those accused of serious crimes such as aggravated assault, robbery, sexual offenses, and murder. The law required that any individual between the ages of 13 and 17 be subject to the jurisdiction of the adult criminal court. A quasi-experimental cohort design study on juvenile arrest rates pre- and post-passing of Georgia's Senate Bill 440 have shown no significant change in the years following the enactment.
These findings echo the academic literature on deterrence - that increasing punitivity in the hopes of deterring crime are rarely fruitful. The philosophy of deterrence posits a rational calculus on part of the offender; a decision in which potential gains and losses are carefully weighed before the would-be criminal arrives at the most logically-defensible choice. This understanding of decision-making poorly reflects human cognitive processes, much less that of juveniles. The adolescent brain is in an intermediate stage of development, and the behavioral choices of the typical teenager is marked with impulsivity and risk tolerance. Further, juveniles have a dearth of practical "life experience" and are not fully aware of the long-term consequences such behavior may create. This bounded rationality, both in terms of information availability and cognitive processes, renders deterrence-oriented delinquency prevention strategies likely to fail.
The Rehabilitative Value of the Adult Criminal Justice System for Juveniles
One of, if not the, most salient purposes of the both the adult and juvenile justice systems is that of rehabilitation. Offenders who are punished in a rote fashion without addressing the underlying cause of their criminality are likely to again fall under the purview of the adult or juvenile court as a recidivist. Rehabilitation, in general, offers better future outcomes for the offender and likewise the public through increased safety. However, it is imperative that the offender is placed within the correct rehabilitation program - one that is suited to their risks and needs. Research on the modality and delivery of correctional rehabilitation-oriented programs have shown that properly-ascribed rehabilitation is likely to reduce recidivism amongst the treatment group while assigning offenders to programs irrespective of their criminogenic risks or needs is likely to produce no discernable gains in, if not increase, recidivism.
This phenomenon is seen prominently in the juvenile corrections literature. A study of over 2,000 delinquent youth in New York and New Jersey addressed the variation in outcomes between the adult and juvenile court, specifically regarding youth arrested for armed robbery, aggravated assault, and burglary. In law and in practice, juveniles arrested in New York are tried before the adult court, and in New Jersey nearly all adolescent offenders of the aforementioned laws are tried before a juvenile court. The results were staggering: the youths tried before an adult court were 85 percent more likely to be rearrested for violent crimes and 44 percent more likely to be rearrested for felony property crimes in comparison to those tried before a juvenile court. Further, those tried as adults were 26 percent more likely to be re-incarcerated within the follow-up period.
A 2002 study of Florida juvenile offenders found similar results. Taking a sample of 900 youth arrested between 1993 and 1995, researchers created 475 pairs matched by demographic characteristics and elements of the crime. In each pair, one of the juveniles had been transferred to the adult criminal court while the other was adjudicated in the juvenile court. In nearly 29 percent of the matched pair, only the youth transferred to the adult criminal court reoffended, compared to the 14.7 percent of pairs in which only the offender tried before the juvenile court reoffended. Amongst the pairs in which both juveniles reoffended, the youth transferred to the adult criminal court were likely to have committed a more serious felony than the youth processed in the juvenile court. Further, those youth processed as adults were 15 percent more likely to reoffend in adulthood. In Minnesota, an outcome study of the waiver process has shown that youths who were tried as adults were 16 percent more likely to be recidivate than those tried in the juvenile court system.
In a 2010 summary report, the Office of Juvenile Justice and Delinquency Prevention found a striking consensus that, even when considering different methods for determining recidivism, transfer mechanisms, and statutory contexts, all evaluated studies have found that on the whole juveniles adjudicated in adult criminal courts experience worse outcomes than do those processed in the juvenile court. The Task Force on Community Preventive Services, a nonfederal, independent public health best practices organization, conducted a systematic review of seven seminal studies. In the analysis of median change in rates of re-arrest, the group concluded that juveniles adjudicated in the adult criminal court were, in general, at a near 34 percent greater likelihood to be arrested for a subsequent crime than were the youth whose cases were handled in the juvenile system. As such, it can be reasonably concluded that handling juveniles in the adult criminal court is detrimental to the rehabilitative purpose of the criminal justice system.
This divergence has been observed in Wisconsin as well. A 2008 analysis of juveniles and adults released in 2002 found that 48.1 percent of 17 year-olds subject to the adult criminal court were re-incarcerated within a three-year follow-up window, compared to 21.3 percent of adults and 18.2 percent and 26.6 percent of juveniles (in the two- and four-year follow-up windows, respectively.
Safety within the Adult Correctional System
Although state and federal law mandates that juveniles held within the adult correctional system are not housed with incarcerated adults, it permits juveniles to be housed in an adult correctional facility. These facilities are rarely equipped with juvenile-oriented rehabilitation or education programs. This paucity of opportunity for development often comes with collateral consequences of releasing the youth poorly prepared to secure meaningful employment upon release while the youth's underlying criminality remains unaddressed. Secure confinement is also likely to lead to the potential for victimization and self-harm.
In spite of juvenile being school-aged, adult facilities rarely provide adequate education. Roughly 40 percent of jails provide no educational programing, and only 7 percent provide vocational programming. 44 percent of all prisons in the United States offer no vocational programing.
Victimization is an ever-present threat - it is estimated that juveniles who are held in adult facilities have a 50 percent higher likelihood of being assaulted by an inmate using a weapon. Official reports also estimate that juveniles, while comprising less than one percent of jail inmates, represented 21 percent of sexual victimizations. Also facing incarcerated juveniles is the risk of self-inflicted harm. One study found youths 36 times more likely to commit suicide in an adult jail than in a juvenile facility.
The absence of appropriate rehabilitation, educational, and vocational programming presents further problems for minors incarcerated in the adult corrections system. An offender processed through the juvenile court may be subject to the following out-of-home sanctions:
• Relative's home
• Non-relative's home
• Licensed foster home
• Licensed treatment foster home
• Licensed group home
• Licensed residential care center
• Juvenile detention facility or juvenile section of a county jail if facility is authorized by county board resolution
• County supervised residential care center
• Juvenile correctional facility or secured-care center or group home
These potential sanctions offer the youth the ability to continue their education in their designated school or within the facility to which they are assigned. However, 17 year-olds processed through the adult criminal court, outside of those receiving probation, will not be able to continue their education, thus making stifling their reentry.
Further complicating matters is the finding that juveniles who are adjudicated in an adult criminal court are likely to receive longer sentences than those adjudicated in a juvenile court. A 2004 study suggests that youth handled in the adult court system are subject to a "juvenile penalty;" that is, the very fact that their case has been transferred into the adult criminal court suggests that the youth is more blameworthy and deserving of punishment. As such, the authors estimate that juveniles received markedly longer (from 7 to 43 percent) sentences than young adults accused of similar crimes, net of all legal variables. Juveniles are remanded to secure, adult-oriented confinement are in turn subject to the deleterious effects of imprisonment.
The Potential Benefits of Raising the Age of the Juvenile Court's Jurisdiction
In terms of per-offender cost of keeping offenders in a juvenile facility versus an adult correctional facility or under juvenile probation versus adult probation, the former is ostensibly more expensive. Smaller caseloads, lower staff-to-inmate ratios, wrap-around juvenile programming, adult offenders having to pay for a portion of their supervision or confinement, and the general difference in economies of scale create this disparity. However, existing research suggests that the savings a state can experience though the proper classification and treatment of juvenile offenders may outstrip initial costs of providing such programs.
Connecticut, for example, experienced a savings of nearly $12 million following the states raising the juvenile court's age of jurisdiction from 15 to 17. Funding was appropriated anticipating a 40 percent growth in juvenile caseloads as 16 and 17 year-old offenders, though the overall caseload only grew by 22 percent. Following the Illinois reforms, the state was able to close three juvenile detention facilities due to low occupancy.
Further, there is the increasing potential liability pursuant to changes in standards to the Prison Rape Elimination Act, or PREA. Since its inception, PREA has mandated that juvenile offenders [under federal law, those 17 years of age and younger] in adult facilities be separated from adult offenders, recent addendums hold that compliance cannot be gained by subjecting juvenile detainees to conditions of solitary confinement (i.e., 23 hours of seclusion punctuated by 1 hour of recreation). The new standards also specify that juveniles must be provided with programming. It is likely that costs of compliance with these measures will increase the expense of housing those 17 years-old and below in adult facilities. Failure to comply can result in a 5 percent penalty being applied to the payment of federal grant money, to say nothing of potential civil ligation.
Adolescence is a critical stage of an individual's development in terms of brain development, social connections, and opportunities for future growth. Considering that low-level juvenile delinquency is fairly common among youth, subjecting otherwise-low-risk juvenile offenders to the negative environment of the adult correctional system is likely not only detrimental for the youth, but also runs the risk of encouraging future offending.
The motivation behind the 1995 reforms was understandable. Legislators sought to deter would-be juvenile delinquents by subjecting those on the periphery of the juvenile court's jurisdiction (those 17 years of age, who ostensibly should "know better") to the more-punitive adult court system. This deterrence rationale seems to have missed the mark, however, as the juvenile crime rates for both violent on property crimes, after a minor uptick, have resumed pre-existing declines.
The worry that returning the upper age boundary of the juvenile court's jurisdiction to 17 will deprive the government of the ability to appropriately punish serious juvenile offenders is also misplaced. The State of Wisconsin's criminal code already permits the transfer of serious juvenile offenders to the adult criminal justice system. Under Wisconsin Statute 938.12, a court may upon consideration of the juvenile's previous record, age at the time of the crime, or heinousness of the crime at hand grant a waiver of a juvenile to the adult criminal court.
Research from around the country shows that the vast majority of 17 year-old offenders, those who committed a low-level crime and are of little risk to reoffend, belong under the jurisdiction of the juvenile justice system. The juvenile justice system is better-equipped to dispose of the nuanced cases that juveniles often present. The experience of other states has shown that returning 17 year-old, first-time, non-serious offenders to the purview of the juvenile court allows both the adult and juvenile courts to process the cases they are best equipped to handle.