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Kristin Henning

Abstracted from: Kristin Henning, Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform, 98 Cornell Law Review 383 (January, 2013) (439 Footnotes)


      Over the last quarter century, psychological research has shown that much of youth crime and delinquency is the product of normal adolescent development. Compared to adults, adolescents often make impetuous and ill-considered decisions, are susceptible to negative influences and outside pressures, and have a limited capacity to identify and weigh the short- and long-term consequences of their choices. As most youth mature, however, they age out of delinquent behavior and rarely persist in a life of crime. Because children and adolescents are more malleable and amenable to rehabilitation than adults, the Supreme Court has recognized youth as a mitigating factor in the disposition of even the most serious criminal behavior by adolescents. Most notably, in Roper v. Simmons in 2005, Graham v. Florida in 2010, and Miller v. Alabama in 2012, the Supreme Court relied upon developmental research to conclude, respectively, that the death penalty is categorically inappropriate for youth under the age of eighteen, the sentence of life without the possibility of parole is too severe for youth convicted in nonhomicide cases, and a mandatory sentence of life without the possibility of parole in homicide cases is impermissible because it denies youth the opportunity to present mitigating evidence concerning their development.

      Ironically, the developmental research seems to have had little effect in reversing the pervasive overreliance on law enforcement officials and juvenile courts when responding to typical adolescent behaviors, particularly among youth of color. Whereas school officials were once willing to address normal adolescent misconduct through counseling and other in-school interventions, school officials now routinely rely on police officers to manage student discipline. A typical schoolyard fight is labeled as a felony assault, and students who play “catch” with a teacher's hat are charged with robbery. While teachers, law enforcement officers, and ultimately prosecutors are rightly concerned about public safety, youth accountability, and compensating victims for their harms, these concerns are too often addressed with law enforcement strategies that ignore scientifically supported conclusions about adolescent offending and diminished culpability. These strategies also disregard more effective, community-based alternatives to prosecution that are more likely to ensure adolescents' successful transition to adulthood.

      There is little dispute that racial disparities pervade the contemporary American juvenile justice system. Although black youth comprised only 16% of all youth in the United States from 2002 to 2004, they accounted for 28% of all juvenile arrests, 37% of detained youth, 34% of youth formally processed by the juvenile court, 35% of youth judicially waived to criminal court, and 58% of youth sent to adult state prison. The persistent overrepresentation of youth of color in the juvenile justice system is consistent with empirical evidence that racial stereotypes negatively affect judgments about adolescent culpability, maturity, risk of recidivism, and deserved punishment. This Article posits that the juvenile justice system treats youth of color more harshly than their white peers in part because decision makers throughout the system are less inclined to recognize their developmental immaturity. Although the juvenile justice process as a whole needs reform, this Article focuses specifically on the role of prosecutors at the charging phase and contends that prosecutors have a unique responsibility as gatekeepers of juvenile court jurisdiction to correct racial disparities in the system by filtering out illicit and implicit bias and applying the findings of developmental psychology equitably to all youth in the charging decision.

      This Article proceeds in three parts. Part I reviews recent findings in the study of normative adolescent development and considers how society's understanding of adolescence has shaped law and policy since the inception of the first juvenile courts. Part II recognizes that society has always tolerated some disruptive, and even delinquent, adolescent behavior without formal state intervention and without significant cost or threat to public safety. However, as is evident in data documenting the disproportionate arrest and prosecution of youth of color, state actors appear particularly unwilling to excuse and tolerate adolescent misconduct by black and Hispanic youth. Part II identifies factors that may be creating disparities in police and prosecutorial decision making and contends that distinctions in normative adolescent development or amenability to treatment across race or class cannot explain racial disparities in the system. Drawing from contemporary research on implicit bias, including the most recent studies on the impact of race on perceptions of adolescent culpability, Part II contends that contemporary narratives portraying youth of color as dangerous and irredeemable fuel pervasive fear of these youth and cause prosecutors to disproportionately reject developmental immaturity as a mitigating factor for their misconduct.

      Part III seeks to improve prosecutorial decision making and reduce the prosecution of youth of color for low- to midlevel offenses that would likely be excused or handled informally if they were committed by white youth in middle-class communities. To ensure fairness, equity, and efficacy in the charging decision, Part III recommends that prosecutors collaborate with developmental experts and community representatives to draft intake and charging standards that challenge distorted notions of race and maturity, are informed by research in adolescent development, and provide a fair and equitable framework for identifying those youth who should be diverted from juvenile court intervention. More important, Part III challenges prosecutors to derationalize racially coded decision making by recognizing that even when neighborhood effects and social structures produce opportunities for more serious and frequent crime among youth of color, prosecutors have a duty to evaluate and respond to that behavior with the same developmentally appropriate options so often available to white youth.

      To increase transparency and accountability to the public, standards should require prosecutors to track charging decisions by race and neighborhood and encourage community representatives and other stakeholders to periodically review those decisions for disparate impact. To achieve and sustain reforms, prosecutors must change the culture from the top down, resist external pressures to react punitively to high-profile juvenile crime, and challenge faulty public perceptions of mature and dangerous youth of color. Finally, to ensure that communities of color are equipped to address adolescent offending without state intervention, Part III recommends that prosecutors work with policymakers and community representatives to identify and develop a continuum of community-based, adolescent-appropriate alternatives to prosecution.

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      Notwithstanding the growing body of developmental research demonstrating that much of juvenile crime and delinquency is the product of normal adolescent development, contemporary narratives portraying youth of color as dangerous and irredeemable lead police, probation officers, and prosecutors to reject age as an excuse or mitigation for these youth. Aggressive institutional approaches toward adolescent offending motivated by explicit or implicit racial bias lead to the disproportionate arrest, prosecution, and disposition of black and Hispanic youth. This Article considers reform in prosecutorial decision making at the intake stage as a viable strategy to reduce disproportionate minority contact in the juvenile justice system. Specifically, this Article proposes that prosecutors acknowledge the unique developmental status of adolescents and develop guidelines for prosecuting youth that adequately account for the youth's amenability to treatment and diminished culpability in criminal activity. These standards should also hold prosecutors accountable for confronting implicit bias not only in their own decisions, but also in the decisions of other system stakeholders. By engaging the community, collaborating with developmental psychologists, and delineating adolescent-appropriate factors to guide the charging decision, prosecution standards should begin to erode harmful stereotypes about youth of color and hopefully reduce racial disparities in the system over time. Recognizing that the actual or perceived lack of community-based resources in communities of color will likely hinder reforms in prosecutorial charging decisions, this Article also proposes that prosecutors take a leadership role to ensure that resources are fairly allocated to the implementation of adolescent-appropriate responses to delinquency as an alternative to law enforcement and juvenile court interventions.


. Sidley Austin-Robert D. McLean Visiting Clinical Professor of Law, Yale Law School and Professor of Law, Georgetown Law.