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Scott & Steinberg on Welfare & Fairness in Juvenile Crime Regulation

By Lawrence Solum

Elizabeth S. Scott and Laurence Steinberg (Columbia University - Law School and Temple University) have posted Social Welfare and Fairness in Juvenile Crime Regulation on SSRN. Here is the abstract:

The question of how lawmakers should respond to developmental differences between adolescents and adults in formulating juvenile crime policy has been the subject of debate for a generation. A theme of the punitive law reforms that dismantled the traditional juvenile justice system in the 1980s and 1990s was that adolescents were not different from adults in any way that was relevant to criminal punishment ? or at least that any differences were trumped by the demands of public safety. But this view has been challenged in recent years; scholars and courts have recognized that adolescents, due to their developmental immaturity, are less culpable than are adults and that the principle of proportionality requires that teens be punished less severely for their criminal offenses. Moreover, some scholars have invoked developmental research to challenge the core assumption underlying the punitive law reforms that harsh sanctions promote public safety and reduce the social cost of juvenile crime.

In this Article we argue that a developmental model of juvenile crime regulation grounded in scientific knowledge about adolescence is both fairer to young offenders and more likely to promote social welfare than a regime that fails to attend to developmental research. We challenge punitive reformers who presume that public safety is enhanced and social welfare promoted if serious juvenile offenders are punished as adults ? and who are unconcerned about whether their approach is compatible with principles of fair punishment. We focus here primarily on the social welfare argument for a separate and more lenient juvenile justice system grounded in a developmental framework ? for several reasons. First, the argument for mitigation on the grounds of developmental immaturity is more familiar; and although it supports less punishment, it provides no strong basis for a separate justice system. Moreover, lawmakers and the public care about accountability, but they may care even more about public safety; fears about the threat of young ?superpredators? propelled the transformation of juvenile crime policy that took place in the late 20th century. Thus a regime that deals with juveniles more leniently than adults (because they deserve less punishment) is likely to fail in the political arena if public safety is imperiled. In short, the viability of the developmental model depends on evidence that the punitive response of the past generation is not only inconsistent with basic principles of fairness, but also that it has failed to minimize the social cost of juvenile crime, and that regulation based on social science research is more likely to attain this goal.

A very interesting paper, which I recommend.

This paper prompted me to reflect a bit on the relationship between retribution and normative theory. The law (as reflected in judicial opinions) usually offers on a shallow or thin account of the underlying normative theory that justifies retribution. But the kind of argument made by this article, which calls for a revision in the law's conception of retributive justice, would seem to require a deeper account. How can we know whether the immaturity is relevant to retribution without a theory of the moral justifications for retribution? Of course, these questions lead to others, including the problem basing the law on deep moral theories in a pluralist legal culture that restricts judges to public legal reasons.

Full post as published by Legal Theory Blog on August 24, 2010 (boomark / email).

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