Choosing the Future for American Juvenile Justice
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Choosing the Future for American Juvenile Justice

August 2014

Choosing the Future for American Juvenile Justice edited by Franklin E. Zimring and David S. Tanenhaus, New York University Press, 256 pages, $25, paperback

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Probably the most influential figure in the recent history of juvenile justice is Professor John J. DiIulio Jr. of the University of Pennsylvania. In the early 1990s, DiIulio - later briefly director of the White House Office of Faith-Based and Community Initiatives under George W. Bush - coined the term "juvenile superpredators" and predicted the country would be overwhelmed by "approximately 270,000 more superpredators" by 2010. This didn't happen, but DiIulio's catchy (and scary) term infected the dialogue on juvenile justice from that day to this.

What happened instead was "the most substantial drop in youth violence of the twentieth century," according to Choosing the Future for American Juvenile Justice. The anthology, edited by law professors Franklin E. Zimring (UC Berkeley) and David S. Tanenhaus (University of Nevada, Las Vegas), offers a coherent explanation of why DiIulio and the other Clockwork Orange Jeremiahs proved so spectacularly wrong. In his chapter "American Youth Violence," Zimring observes that DiIulio and his fellow doomsayers made a simple statistical mistake: The "crime cohort" of kids they were talking about was simply too young to commit the violent crimes they feared. By the time these children came of age, "[i]n less than a decade, future superpredators had become pioneer leaders in the great American crime decline."

The result of the superpredator hysteria, Zimring writes, was a flood of legislation designed to make it easier to transfer juvenile offenders to adult court - for example, California's Proposition 21, passed in 2000. In California, if you are over 14 and we don't like what you did (your criminal record) or who you are (your race and economic background), you may be presumptively unfit for juvenile court. "... Proposition 21 is representative of much - if not most - of the legislative legacy of the 1990s," he writes.

The fact that the epidemic of superpredators that engendered such electoral panic moves never actually happened didn't result in any rollback of draconian juvenile legislation. State legislators didn't throw up their hands and say, like Gilda Radner's Saturday Night Live character Emily Litella, "Never mind!"

But Zimring and Tanenhaus's final chapter offers a hopeful agenda for change in our youth crime policy:

1. Reverse the shift toward prosecutorial dominance and administrative control of transfers to adult court.

2. "Demilitarize" secondary schools.

3. When possible, have juvenile courts use sanction policies that keep children in the community and out of confinement.

4. Don't force juveniles to register as sex offenders.

5. Keep juvenile conviction and arrest records private.

6. "The juvenile court cannot become a branch of the national government's immigrant policing without violating its own distinctive mission."

7. Reduce collateral consequences, contrary to recent trends. This would reduce the stigma of juvenile justice exposure for minorities.

Much of this prescription for reform probably won't happen. Prosecutors will be reluctant to give up their gains, especially when they're the ones writing the legislation. Courts will probably not keep children out of confinement, especially with political pressure to treat 'em as adults and lock 'em up. Records are less private than ever. Juvenile offenses count as strikes if they would be strikes had an adult committed them. And transfer to adult court jurisdiction is becoming an increasingly administrative process. Morgan Geyser and Anissa Weier, the 12-year-old Wisconsin girls who in May were arrested for stabbing a classmate 19 times (the "Slender Man" stabbing), were immediately charged as adults.

In the words (again) of John DiIulio and his two coauthors in Body Count, youth crime isn't caused by poverty, but by "moral poverty," i.e., fatherless families. And as long as the punitive side of the debate commands the slogans, the Zimring-Tanenhaus reform schedule has little chance.

Ben Pesta, a white-collar and criminal defense lawyer in Beverly Hills, passed away in July 2014.

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