“The United States is the world's leader in incarceration with 2.2 million people currently in the nation's prisons and jails — a 500% increase over the last forty years.”
The natural response to that fact is that crime rates must have been increasing – more crime, certainly, should be the cause for more incarceration. But a delve into the FBI’s annual reports on violent and property crime, as well as a look at the annual survey on 90,000 households conducted by the Bureau of Justice, show that crime has generally fallen by double-digit percentages since 1993. What, then, explains the increased numbers of people behind bars?
There are entire books dedicated to answering this question, but the National Research Council summarizes it well: “The best single proximate explanation of the rise in incarceration is not rising crime rates, but the policy choices made by legislators to greatly increase the use of imprisonment as a response to crime.”
While the mass incarceration crisis is itself disturbing and has garnered condemnation from both sides of the aisle in recent years, the trends within this incarceration are of particular concern. Racial disparities in incarceration have largely been at the center of the conversation, which is no surprise given that “more than 60% of the people in prison today are people of color.”
The racial disparities described above persist for young people, with youth of color entering the system much more frequently than white youth, and generally serving harsher sentences.
Despite the decrease in commitments to juvenile facilities from 1999 to 2013, thousands of young people are still transferred to the adult system each year, with many juveniles sent to adult prisons and jails to serve their sentences. A 2014 report by Act 4 Justice noted that on any given day, approximately 4500 young people are locked up in adult jails, and about 1800 in adult prisons; the same report states that “Approximately 100,000 youth are admitted into local adult facilities and prisons each year.”
While these numbers may seem small in comparison to the over two million people in the criminal justice system, a closer look at what happens to juveniles who are tried in adult courts and/or housed in adult facilities makes these numbers egregiously large. It is not far-fetched to suppose that these estimates are actually much larger; according to the DOJ, only 13 states publicly report transfers of juveniles to criminal court, 10 states report “some but not all” transfers, 14 states contribute data to the National Juvenile Court Data Archive but do not publicly report their individual numbers, and 10 states do not report transfers at all.
Describing why these figures are disquieting requires first answering a series of questions, many of which require certain normative judgments. Two key ones are:
1) What is, or should be, the goal or goals of the U.S. criminal justice system?
2) Should young people get “special treatment” (and what constitutes special treatment)?
The Statement of Principles of Right on Crime, the conservative approach to criminal justice, provides a series of sensible goals for the criminal justice system, including transparency and performance measures. Two of the most critical statements cited by Right on Crime are:
“The corrections system should emphasize public safety, personal responsibility, work, restitution, community service, and treatment...”
“An ideal criminal justice system works to reform amenable offenders who will return to society....”
Put more succinctly, the above may be consolidated as: ensuring public safety while rehabilitating offenders who will return to society.
The number of youth that are tried in adult courts and serve both jail and prison time in juvenile facilities should also be cause for concern. The overall experience of adult court is inappropriate for juveniles, in that judges and prosecutors are not trained to understand the underlying needs of juveniles that may have led to entanglements with the criminal justice system.
The juvenile court experience is supposed to be, according to federal and state laws, more holistic and nurturing of the individual needs of juveniles. Sentences handed down by adult courts may also reflect this difference; so, even if a person serves his or her time in a juvenile facility, the sentence itself may be harsher if handed down by adult court, as likely imposed with a more punitive, and less rehabilitative, focus. More practically, this kind of processing further clogs an already- overflowing criminal system, which seems unreasonable given the readily-accessible (and more appropriate) alternative available.
In accordance with the Juvenile Law Center, the 1974 Juvenile Justice and Delinquency Prevention Act, and every state in the country since the late 1920s, juveniles are, in general, less blameworthy, and possess a greater capacity for change. Juveniles, then, are generally seen as more “amenable” than adults. Such a determination, in fact, is what brought forth the juvenile justice systems in all 50 states, where there is often lighter sentencing and greater emphasis on rehabilitation, as compared to the adult system.
However, the current justice system allows for many exceptions to this treatment. As detailed by the Institute of Medicine, an increase in juvenile crime rates in the late 1980s and early 1990s, prompted the [aforementioned] ‘tough on crime’ policies, depriving certain youth of the juvenile justice system’s protections.
It is important to note that these policies led both the federal and state governments to enact a set of mechanisms to facilitate moving youth from juvenile to adult criminal court for trial and punishment. While the specifics of such mechanisms vary largely by state, the current transfer policies have been cause for much controversy. Experts have voiced two major concerns, noted on the 2012 OJJDP Juvenile Justice Bulletin:
1) Fairness: “Does placement in adult facilities expose adolescents to punishments and conditions that are unduly harsh?”
2) Utility: “Does the practice of juvenile transfer to adult court actually reduce crime as compared with placement in juvenile court?”
To the first point, “punishments and conditions that are unduly harsh” refers not only to longer sentences resulting from transfers to adult courts, but also to the very real possibility of victimization within the adult or jail prison, including the potential for physical, sexual, or psychological abuse, which, according to the OJJDP “...gives pause to even the most ardent supporters of retribution as a justification for transfer.”
According to Beyer, juveniles in adult facilities are five times more likely to be sexually assaulted and two times more likely to be beaten by staff and to commit suicide than youth held in juvenile facilities, in addition to disruptions in development including social identity and learning. Some may argue that these increased probabilities of developmental disruption and even victimization are risks that must be taken in the name of public safety, especially for youth charged with more serious offenses. Whilst unduly harsh punishment is unconstitutional regardless of the crime at hand, this brings up the second concern articulated above – whether transfer policies actually reduce crime.
Obviously, this is a very difficult question to investigate; a fully substantiated response would require evidence of counterfactuals about the crimes that would have been committed were transferred juveniles left in the juvenile justice system.
Perhaps the strongest argument supporting the idea that transfer policies do in fact reduce crime is incapacitation. This is a well-received point in cases where the juvenile is transferred to adult court and then receives a life sentence, but life without the possibility of parole for juveniles has been deemed unconstitutional by the Supreme Court, meaning, effectively, that everyone has a chance to get out.
According to Act 4 Juvenile Justice, “an estimated 250,000 youth are tried, sentenced, or incarcerated as adults every year across the United States” and, “Most of the youth prosecuted in adult court are charged with non-violent offenses.” The fact of the matter is that most juveniles will eventually exit the facilities that incapacitate them. So, the question remains: Does the practice of juvenile transfer to adult court actually reduce crime?
While much research remains to be done on this question, all studies reported thus far by the Department of Justice suggest the answer to be ‘no’; the Juvenile Justice Bulletin states “Studies [like these] have contributed to the conclusion that juvenile transfer policies uniformly produce negative outcomes.” Scholars like Bishop and Frazier, too, indicate that “transferred adolescents are more likely to recidivate, recidivate at a greater rate, and can be re-arrested for more serious offenses, on average, than those retained in the juvenile justice system.” “The impetus behind transferring kids to the adult system has always been public safety, but research has shown the exact opposite. Kids who are placed in the adult system are 34 times more likely to recidivate than their counterparts in the juvenile system.”
Take a minute to consider why this may be the case. If youth are not kept safe in adult facilities, they will likely be physically and psychologically assaulted, which, if fostered in a non-rehabilitative setting, can create trauma, which has largely been linked to higher rates of recidivism. If juveniles are kept ‘safe’, away from other inmates in isolation or solitary confinement, a similar harmful result ensues; isolation is also linked to worsened mental health, higher suicide rates, and higher recidivism. As noted by Act 4 Juvenile Justice, “Corrections officials are faced with a “no win” situation when youth are placed in adult facilities: they can't keep youth safe and segregating youth in isolation/solitary confinement creates a different, but equally harmful Result.”
One last argument to consider in favor of increasingly stringent transfer statutes is the general idea of deterrence; if juveniles know that they run a higher risk of getting tried as adults if they commit a crime, then perhaps less juveniles will take the risk of committing those crimes. Deterrence, again, is not an easy idea to measure. Still, a series of studies by Jensen and Metsger in 1994, Singer and McDowell, and Levitt in 1998, and McGowan et al. in 2007 all found that “the amount of research supporting or refuting general deterrence effects is extremely sparse and inconclusive.”
In other words, we do not know.
So, having judged that juveniles are indeed entitled to “special treatment”, and that:
1) transfer to adult courts seems to have very little substantive support for increased public safety arguments, since most juveniles in adult court will eventually re-enter
2) juveniles in adult jails and prisons are at increased risk for physical and psychological abuse and developmental hindrance.
3) rates of recidivism are actually higher and more likely to be violent in juveniles that are tried and sentenced as adults as compared to those who go through the juvenile justice system.
4) there is no substantial evidence suggesting that easing juvenile to adult transfers has a deterrence effect.
The current criminal justice system is failing on both of its stated purposes.
The eased transfer of juveniles to the adult criminal system not only runs the risk of severely hurting the juvenile’s personal, mental, physical, and emotional development, but also risks the maintenance of public safety given the conditions these juveniles are in once they finish their sentence, and the higher rates of recidivism associated with those who go through the adult justice system. At best, by transferring juveniles to adult courts, the current system is postponing further crime, rather than eliminating it. The solution? Use the juvenile justice system instead.