by Elizabeth S. Scott and Laurence Steinberg. Cambridge: Harvard University Press, 2008. 384pp. Hardcover. $29.95/£22.95/€27.00. ISBN: 9780674030862.
Reviewed by Lucy S. McGough, Paul M. Hebert Law Center, Louisiana State University Law School. Email: Lucy.McGough [at] law.lsu.edu.
That this book was eagerly anticipated is an understatement: At a social policy conference in the Fall, an attendee spotted my review copy and asked with some excitement, “Is it out already? Where did you get your copy?” That encounter is a singular event in my experience. Not quite a Harry Potter release but close.
Such expectations stem from the widely acknowledged acumen of the authors as well as a throbbing, contemporary perplexity about the role of the juvenile courts. Elizabeth Scott, formerly of the University of Virginia Law School and now the Harold R. Medina Professor at Columbia Law School, is a highly regarded expert on issues of family and children’s law. Lawrence Steinberg, whose specialty is adolescence, is a Distinguished Professor of Psychology at Temple University. Both were members of the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, a think tank that has provided influential research for the formation of juvenile justice policy for the past decade. Scott and Steinberg take an interdisciplinary approach in formulating what they term a “Developmental Model” for rethinking the law’s approach to adolescent offending, one that reflects the core principles of proportionality and due process. The book is well written and its arguments easily understood by academics, policymakers and laypersons.
They surface two important issues of juvenile justice policy, though both are re-thought in light of the empirical research on adolescence. The first issue is whether adolescents deserve a separate niche of procedures and sanctions, rather than being lumped in with younger delinquent children in the juvenile court or at the opposite extreme, subjected to the same processing as are adults in the criminal justice system. Although not excused by lack of mental development or moral awareness, does the diminished cognitive capability and moral immaturity of most adolescents suggest that they are less culpable and hence, their punishment should be lighter than that meted out to an adult offender? The second issue, the more complex in terms of implementing policy, is how diminished cognitive understanding that affects substantial numbers of adolescents is to be taken into account by a justice system that insists that an accused understand the adversarial process and participate in the development of his or her defense.
The Founding Mothers of the juvenile courts were convinced that delinquents were children in need of protection, not so dissimilar from abused and neglected children. During the past 20 years, as Scott and Steinberg properly note, there [*79] has been a collapse of the philosophical underpinnings of the juvenile courts when public clamor demanded that something be done about the apparent significant increase in violent juvenile crime. (Of course, as Zimring (2005) most notably has demonstrated, the juvenile crime incidence in the 1990s in fact did not significantly expand, but such voices did not quell the wave of fear.) Even some juvenile justice experts abandoned traditional beliefs that almost all offenders could be rehabilitated with supportive supervision and that retribution and punishment were inappropriate reasons for intervention. In view of what was touted as a burgeoning crop of “super-predators,” critics sought punitive revisions, and legislatures responded by diminishing the juvenile court’s jurisdiction and moving public safety to a prominent place in the listing of its purposes.
The traditional binary categorization of “children” and “adults” ignores the developmental reality that adolescence does not easily fit in either group. Adolescence is characterized by a unique set of features, including problematic attributes of immature judgment, impulsiveness, experimentation and present indulgence that are often hallmarks of criminality. Like Goldilocks’ choices, appropriate sanctions for adolescent offenders should avoid the too soft sanctions applied to very young miscreants as well as the too harsh penalties imposed on adult criminals. This insight was clearly embraced by the Supreme Court when, in ROPER v. SIMMONS (2002), it declared that the use of the death penalty for offenders under the age of eighteen constituted cruel and unusual punishment. The same argument calls into question whether a punitive sanction for a sixteen-year-old who is a violent aggressor or a habitual offender is appropriate for the disposition of a twelve-year-old, first offense burglar. The authors state that they provide a social welfare analysis of youth crime policy and replace the traditionally exclusive goal of fairness and rehabilitation of young offenders with a politically more promising goal of the prevention of crime at the least cost to society. Thus, whether or not criminal trial and incarceration is an appropriate sanction is assayed in terms of whether imprisoned youths recidivate more than those remaining in juvenile institutions and programs (yes) and whether incarceration is more expensive (yes). They urge the replacement of the “rehabilitative” model of the juvenile court with a “developmental” model that takes into account society’s legitimate concerns about public safety and accountability. Borrowing from the concept of mitigation in criminal law, Scott and Steinberg suggest that an adolescent who commits a crime should neither be excused nor held fully responsible for the offense. Adolescence is a time of diminished decision-making capability and susceptibility to suggestion and herd behavior, classic characteristics justifying mitigation of punishment.
Many professionals, practitioners and academics, have struggled with the conundrum abiding in the very concept of the juvenile court. If a child is so cognitively immature that she does not understand the process in which she is enmeshed and how to protect herself, and consequently, she cannot be tried in (and punished by) a criminal court without violating her constitutional [*80] rights, can she be tried and punished at all? Initially, the juvenile court founders argued that a court of informal, comprehensible process and limited powers of punishment would pass moral muster, although GAULT (1967) called that assumption into constitutional question. The “MacArthur Study,” funded by the John D. and Catherine T. MacArthur Foundation and published in 2002, found a high incidence of cognitive impairment among alleged juvenile perpetrators. The Study was an impeccably designed, nationwide, empirical comparison of accused juveniles with groups of non-offending juveniles, imprisoned adults and non-offending adults (Grisso, et al. 2003). In matters of trial-related understanding and reasoning about issues vital to their defense, a significant proportion of the group of accused juveniles were found to be barely functioning at the cognitive levels of adults deemed mentally incompetent to stand trial: 30% of accused 11-13 year-olds; 19% of 14-15 year-olds; and 12% of 16-17 year-olds. Not surprisingly, competence diminishes with age: the younger the child, the more likely he or she is to lack the “adjudicative competence” required by Due Process. In several decisions, including its landmark decision in DUSKY v. UNITED STATES (1960), the Supreme Court held that adjudicative competence includes the ability to narrate the events leading up to arrest, to advise counsel about critical decisions, to request or waive counsel, and whether to plead guilty. The Supreme Court has never considered whether the federal Constitution requires that a juvenile accused of a crime (or delinquent offense) must be competent to stand trial, but its juvenile cases do not leave the answer in much doubt. The MacArthur Study did not tell readers about any unknown adolescents’ deficits; its developmental trend finding was also easily intuited; even the extent of incompetence in each age group was not surprising. The remarkable aspect of the Study was that the quality of the research forced policymakers to do something about the continued processing of mentally retarded and developmentally incompetent accused children. The MacArthur Study lent enormous credibility to reformers’ claims.
Simply engrafting conventional incapacity to stand trial principles from criminal procedure creates terrific practical problems for the juvenile system. There are huge numbers of accused delinquents who lack adjudicative competence, and for the very young, for example a twelve-year-old, maturation may take five or six years. Postponing hearings until these young accused incompetent delinquents acquire developmental maturity creates safety risks (and may also violate speedy trial commands), and institutionalizing them without a finding of guilt or dangerousness is more clearly unconstitutional. Scott and Steinberg propose a different, “relaxed” standard for a determination of competence in the juvenile court, a concept which they credit to Bonnie and Grisso (2000). The proposed juvenile test of competency to stand trial requires a finding that the child understands the charges, the proceeding, his role and the roles of others and has the capacity to communicate with his attorney (Bonnie and Grisso 2000, at 73) What is missing from the adult DUSKY formulation is the ability to weigh the consequences of the decisions to be [*81] made, such as whether to accept a plea agreement. The requirement of capability for meaningful consultation and assistance in preparing one’s defense also appears to be diluted.
Scott and Steinberg’s asserted defense of the constitutionality of a relaxed standard is not wholly convincing. It should be noted, however, that they do insist that a distinct standard for assessing competence can only be justified if juvenile courts in fact employ lesser sanctions than the criminal courts and that there is a demonstrable commitment to treatment and rehabilitation, although institutionalization of some juvenile offenders may be necessary. Even so, nagging doubts about constitutionality haunt the proposal. Admittedly, the Supreme Court has mentioned in passing that the unique nature of the goals of the juvenile courts plays into an analysis of due process claims, but merely the disruption of the court’s processes that a requirement of competency would bring is surely not a sustainable constitutional justification. The Supreme Court has never held that all adults’ constitutional rights were held by accused children (and specifically rejected the right to jury trial in delinquency proceedings). Nevertheless, the Court’s litmus test is whether the claimed right “would strengthen greatly . . . the factfinding function” (MCKEIVER v. PENNSYLVANIA (1971)). It is hard to argue that interacting with a bewildered, frightened young teen does not imperil the accuracy of the court’s assessment of the truth of the accusations. A lengthy examination of the constitutionality of Scott and Steinberg’s proposal is beyond the scope of this review. It is enough to credit this book’s defense of the proposal as ingenious, provocative and worth debate.
These experts conclude with cautious optimism. They believe that new juvenile justice reforms that publicize available scientific developmental data and empirical data demonstrating savings in recidivism and costs due to keeping kids in the juvenile system will be successful. They believe that we can avoid the demolition of the courts or at least staunch the loss of so many young offenders from the courts’ jurisdiction. This book is one of the very few works that provides legal and developmental analyses and offers politically savvy advice about implementing a successful legislative strategy. I wish the authors had provided a bibliography, but aside from that small lapse, this is a book that everyone should read.
Bonnie, Richard, and Thomas Grisso. 2000. “Adjudicative Competence in Juveniles,” in Robert G. Schwartz and Thomas Grisso (eds). YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE. Chicago: University of Chicago Press.
Grisso, Thomas, Laurence Steinberg, Jennifer Woolard, Elizabeth Cauffman, Elizabeth Scott, Sandra Graham, Fran Lexcen, N. Dickon Reppucci, and Robert Schwartz. 2003. “Juveniles’ and Adults’ Competence as Trial Defendants.” 27 LAW AND HUMAN BEHAVIOR 333-363. [*82]
Zimring, Franklin E. 2005. AMERICAN JUVENILE JUSTICE. New York: Oxford University Press, 2005.
DUSKY v. UNITED STATES, 362 U.S. 402 (1960).
In re GAULT, 387 U.S. 1 (1967).
MCKEIVER v. PENNSYLVANIA, 403 U.S. 528 (1971).
ROPER v. SIMMONS, 543 U.S. 551 (2002).
© Copyright 2009 by the author, Lucy S. McGough.