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Some Thoughts on Incarceration of Juveniles
By Arthur A. Katz, J.D.


Arthur A. Katz, J.D.Have you ever thought about the purpose of incarceration? Is it (i) to punish a criminal for the crime he or she has committed, (ii) to keep a criminal separate from society at large so that he or she no longer can produce further harm, or (iii) to reform a criminal so that the individual no longer commits a crime?  Or is it a combination of the above?  And, if a crime is committed, is the criminal, while sane (as defined by the applicable law), mentally ill and be treated for mental illness?  Should the monetary cost to society be taken into consideration?  And, lastly, should juveniles be treated different from adults?

These topics have been discussed for longer than we have been alive, views are widely divergent and the answers are not simple.  Moreover, the treatment of criminal behavior is highly dependent on the history and social and cultural mores of the society in which the questions are raised.

In the United States, we have not advanced in our consideration of these matters as much as in several other countries.  We are coming closer to an understanding concerning the treatment of juvenile criminals, but we are far from reaching a consensus.

A study paper issued in April 2015 by The Pew Charitable Trust, titled “Re-Examining Juvenile Incarceration”, concluded that:

“A growing body of research demonstrates that for many juvenile offenders, lengthy out-of-home placements in secure corrections or other residential facilities fail to produce better outcomes than alternative sanctions.  In certain instances, they can be counterproductive.  Seeking to reduce recidivism and achieve better returns on their juvenile justice spending, several states have recently enacted laws that limit which youth can be committed to these facilities and moderates the length of time they can spend there.  These changes prioritize the use of costly facilities and intensive programming for serious offenders who present a higher risk of reoffending, while supporting effective community-based programs for others”

Keeping juveniles out of correctional facilities produces the best outcome.  The various studies that I have reviewed suggest that placement in correctional facilities does not deter repetition of criminal behavior and, in a number of instances, such incarceration increased the likelihood of further criminal behavior.  Moreover, as with adults, incarceration of juveniles is costly.  The Pew study mentioned that the 2012 annual cost for juvenile incarceration was $179,400 in California (which was not the most expensive state) and $85,549 in Virginia.  Unfortunately, the States have not yet established adequate alternative environments with proper supervision and counseling, and progress seems to be glacial, irrespective of the significantly higher costs of incarceration.  Hopefully, in time, adequate appropriate environments will be established, which should result in lower costs to the taxpayers and better results. 

There appears to be a healthy and growing trend to treat juveniles differently from adults, understanding that criminal behavior can be more easily moderated and, even, eliminated by treating juvenile criminal behavior more aggressively and with proper counseling and other methods, which would not be as effective in an adult population.  Even the U.S. Supreme Court has recognized this difference. The Court, earlier this year, in the case of Montgomery v. Louisiana, reemphasized that juveniles are required to be treated differently from adults.

Montgomery, in my view, was not a landmark case and merely determined that the Supreme Court’s 2012 decision in Miller v. Alabama was to be applied retroactively.  Miller held that an automatic life sentence without the possibility of parole, when applied to a person who committed a crime when under the age of 18 (a “juvenile”), was cruel and unusual punishment under the Eighth Amendment to the Constitution and, therefore, unconstitutional.

The Court in Montgomery said:

“children are constitutionally different from adults for purposes of sentencing.  These differences result from children’s diminished culpability and greater prospects for reform, and are apparent in three primary ways:

“First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking.  Second, children are more vulnerable to negative influences and outside pressures, including from their family and peers; they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings.  And third, a child’s character is not as well formed as an adult’s; his traits are less fixed and his actions less likely to be evidence of irretrievable depravity.

“As a corollary to a child’s lesser culpability,  . . .  the distinctive attributes of youth diminish the penological justifications” for imposing life without parole on juvenile offenders. Because retribution relates to an offender’s blameworthiness, the case for retribution is not as strong with a minor as with an adult.  The deterrence rationale likewise does not suffice, since the same characteristics that render juveniles less culpable than adults — their immaturity, recklessness, and impetuosity — make them less likely to consider potential punishment.  The need for incapacitation is lessened, too, because ordinary adolescent development diminishes the likelihood that a juvenile offender forever will be a danger to society. Rehabilitation is not a satisfactory rationale, either.  Rehabilitation cannot justify the sentence, as life without parole forswears altogether the rehabilitative ideal.”

*  *  *:

“[However,] a sentencer might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified. But in light of children’s diminished culpability and heightened capacity for change, Miller made clear that appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

I, for one, find it difficult to disagree with the Court.  #



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