This Will Hurt me More Than it Hurts You: Social and Legal Consequences of Criminalizing Delinquency

Since 1990, nearly every state has enacted new laws to expand the transfer adolescent offenders from juvenile to criminal courts for sentencing and punishment. What happens to adolescents once placed in the criminal justice system, the returns to crime control from these policies, and the potential violations of human rights that ensue, are the focus of this essay. The quick pace of change, the broad reach of the new laws, the potential for unintended negative outcomes, and the harsh conditions of adult punishment for juvenile offenders add new urgency to these questions. The first section discusses the tension between new laws and both jurisprudential theory and social science evidence on the culpability of adolescent offenders. Although waiver of juveniles to criminal court legally may signal the "end of childhood" for that offender, theory and research on adolescent development suggest that the developmental process is far from complete with respect to further antisocial behavior, the jurisprudential indicia of adult competencies and culpability, and the natural history of more generalized transitions from adolescence to adult social roles and behaviors. Next, I assess the returns to crime control from current policies that punish adolescent offenders as adults to reduce crime and increase public safety. Recent controlled studies suggest that while punishment in criminal court for adolescent offenders in more certain and severe, utilitarian goals of lowering juvenile crime rates have not been achieved. Increasing substantive punishment for adolescents may in fact elevate crime rates and heighten the same public safety risks that the legislation is intended to reduce. Next, these empirical results are contextualized in theories of adolescent development and criminology to locate the sources of iatrogenic effects within prevailing policies of retribution and deterrence. Punishment of adolescents as adults exposes them to high levels of violence, attenuates their socialization to prosocial norms by constraining critical developmental transitions to a prison setting, and mortgaging their work prospects through the stigma of felony conviction. Punishment as an adult is analogized to toxic exposure that sharply elevates disease risk. The fourth section discusses the implications of this theoretical tension for the jurisprudence of adolescent criminality, and the theory and future of the juvenile court. This conclusion revisits the human rights dimensions of these developments in law and policy.