Abstract
In Roper v. Simmons, the U.S. Supreme Court determined that the sentencing of juveniles to death violated the constitutional amendment against cruel and unusual punishment. Similarly, the Court most recently decided that life without parole for nonhomicide offenses is also unconstitutional (Graham v. Florida, 2010). Part of the reason for the Court’s decisions is the lack of consensus as to the appropriateness of punishing juveniles as if they were adults. To examine the extent to which there is consensus as to the capital penalties for capital crimes, this article examines a population of young juveniles who were initially charged with murder, and then subsequently convicted in criminal court and sentenced to life in prison. As is the case with adults, not all juveniles were convicted in criminal court for their initial charge of murder. But unlike for adults, a proportion of eligible juveniles were adjudicated delinquent in juvenile court or received youthful offender in criminal court, resulting in a less severe sentence than a maximum of life in prison. The author suggests that this reduced set of sanctions, which a segment of juveniles receive, is substantive justice and the reproduction of juvenile justice. He found significant differences in the reproduction of juvenile justice by place and prior offense.
Keywords
The U.S. Supreme Court has reentered the business of deciding the borders of juvenile justice as they might impact the sentencing of juveniles in criminal court. In 1966, the Court began a due process revolution for juveniles in juvenile court with a case of judicial waiver (Miller, 1979). Close to 40 years after its Kent decision, the Supreme Court in the case of Roper v. Simmons (2005) decided to revisit the issue of waiver, but this time in terms of the automatic transfer of juveniles to criminal court and their sentencing as adults. In Roper v. Simmons, the court ruled that sentencing juveniles as if they were adults to the penalty of death by state execution is cruel and unusual punishment. The Court partially grounded its decision in the social science facts of adolescence (Scott, 2000; Scott & Steinberg, 2008) and the fact that most states do not execute their juveniles. Although legal scholars may question the Court’s selective use of the social science data (Denno, 2005; Feld, 2003), the inescapable fact is that the vast majority of developed nations forbid capital punishments for juveniles. Not only do the vast majority of states and developed nations forbid capital punishment but also few states actually sentenced their juveniles to death.
More recently, the Supreme Court followed the precedent set by Roper v. Simmons (2005) in deciding the constitutionality of another maximum adult penalty. In the case of Graham v. Florida (2010), the Court ruled that a sentence of life in prison without the possibility of parole for juveniles convicted of nonhomicide offenses is cruel and unusual punishment. The Court again noted that few states actually sentence juveniles to life without parole, although this penalty is technically available in a majority of states. In fact, the Court reported that of the 111 juveniles currently serving life-without-parole sentences, 77 are in Florida (Bravin, 2009).
Clearly, many states have enacted or expanded waiver legislation to mandate adult penalties for juveniles. The rise in waiver legislation in the late 1970s and into the 1990s reflects public concern over violent juvenile crime (Bishop, Frazier, & Henretta 1989; Feld, 1999; Feld, 2000; Singer, 1996). Most recently, Simon (2007) observed that this concern over violent juvenile crime has produced a range of crime control policies that have bypassed the rehabilitative ideal of juvenile justice. But Allen (1978) first noted the passing of the rehabilitative ethos in corrections just at the time when automatic waiver legislation appeared to gain popularity beginning in the late 1970s (Singer, 1996). Unlike earlier reforms, the get-tough face of juvenile justice followed a populist penology inspired by the often repeated slogan “if you are old enough to do the crime, you are old enough to do the time.” Bottoms (1995) has reflected on the reasons for these classical offense-based penal policies in America as well as in the United Kingdom and has concluded that they are contingent on their “particular cultural and political context” (p. 17). In other words, we can generalize to a point about being tough on juvenile crime, and then there is the question of how the particulars are implemented.
The subject of criminal justice scholarship is the extent to which stated laws match the reality of decision making. Criminal justice scholars have long recognized that there are disparities between the law in theory and action. When the actual implementation of waiver legislation is examined in terms of its actual bite, the research literature suggests that not all juveniles are automatically subject to the severe penalties of the criminal court (Bishop et al., 1989). This is also the case for adults with the exception that for adults there is no other system of justice besides the criminal justice system. The system that is available for juveniles under the guise of waiver legislation is the criminal court, but with the possibility of juvenile court or juvenile justice. The Supreme Court, in both its 2005 and 2010 decisions, stated that most states do not execute their juveniles and that most states do not sentence them to life without parole, although the possibilities did exist. The Court alluded to the fact that in states where juveniles are eligible for life without parole, the sentence is rarely implemented.
The reason that the “bark” of waiver legislation is often louder than its actual “bite” has been attributed to legislators knowing full well that it is the job of criminal justice officials to reduce the severity of harshly stated penalties (Casper & Brereton, 1984). Indeed, the dissenting Supreme Court judges in Graham suggested that the reason for why a case by case approach is more appropriate than a categorical one is the fact that criminal justice officials are in the best position to decide which juveniles are deserving of capital adult penalties. In this sense, the loud and harsh bark can produce a severe bite for those in the unfortunate position of receiving the formal requirements of waiver laws.
However, questions remain, particularly to grasp how “unusual” a life sentence is for those juveniles convicted and sentenced in criminal court. Can a life sentence be subject to substantive reasons for justice when it involves the penultimate offense of murder? If substantive reasons matter, how might they be linked to the personal, offense, and jurisdictional attributes of a juvenile? Younger juveniles may look too young to be sentenced to life. Similarly, minority youths may be plagued by a host of disadvantages that make them appear more like serious chronic delinquents deserving of the harsher adult penalties of the criminal court. Last but not least, is the desire to impose a life sentence dependent on place of jurisdiction? Although we know that the possibility of life without parole exists in some states, we know little about the likelihood of a life sentence for juveniles within a single state of jurisdiction. This is a difficult statistic to calculate given the complexities of waiver as it borders the possibility of systems of juvenile and criminal justice.
Purpose
In this article, I estimate the risk of a life sentence based on state-agency data for juveniles initially charged with murder. The eligible population of juveniles is relatively young (13, 14, and 15 years of age). Conviction for the charged offense of murder in criminal court means a life sentence, although there is the possibility of parole. In making assessments about the criminal responsibility of juveniles initially charged with murder, criminal justice officials must invoke their legal discretion. At various stages in the criminal justice process, they may invoke the reason for avoiding criminal court based on substantive concerns about the juvenile. Substantive justice overlaps with extralegal sentencing (Myers & Talarico, 1987) and has most recently been related to the sentencing of transferred youths to official “focal concerns” in their multifaceted decision making (Kurlychek & Johnson, 2004).
Focal or extralegal reasons for mandating the criminal responsibility of juveniles are considered substantive because they represent reasons that are not grounded in the objective harm as determined by official assessments of offense categories. In cases of murder, this determination may be more clear-cut in that there is the death of a victim. The key is substantive justice, which takes into account circumstances that may be related to the personal attributes of the juvenile. Although the assignment of criminal responsibility to adults may seem clear, it is not when it comes to adolescents, especially younger adolescents.
In the first section of this article, I review the possible reasons for reproducing juvenile justice based on offense and offender attributes. The reasons include the place of jurisdiction and how officials in a particular location may be more or less apt to view juveniles as criminally responsible, and therefore deserving of a life sentence. In the second section, I introduce the legislative means in which juveniles may be sentenced to life in a state that assigns criminal responsibility to juveniles at the age of 13 for acts of murder. I then present case processing data for juveniles initially charged with murder. My analysis begins with estimates of the risk of a juvenile’s life sentence based on age, race, prior offense, and place of jurisdiction. I refer to these measures as indicators of risk and proceed to examine their relative significance based on multivariate logistic regression. After I discuss the results, I conclude with a call for looking at how the sentencing of juveniles, as if they were adults, may be reproduced at less visible stages in the criminal justice process.
Reproducing Juvenile Justice
Criminal justice scholarship has long focused on variation in the sentencing of adults within a single state. Sentencing outcomes may be structured not just by extralegal personal attributes, such as race, but also by structural organizational characteristics (Dixon, 1995; Savelsberg, 1992). Courts in densely populated cities tend to be more formal, bureaucratic, and routinized, and this has also been found to be the case in the administration of juvenile justice (Dannefer & Schutt, 1982). The smaller and less densely populated jurisdictions are often less routinized in their administration of criminal justice and more often subject to working groups of officials acting as a community of decision makers (Eisenstein, Flemming, & Nardulli, 1988; Ulmer, 1997). More specifically, Feld (1990, 1991) has emphasized the importance of location by referring to justice by geography, and the way that large urban courts may be more bureaucratized and due process oriented (Jordan & Myers, 2007, Sampson & Laub, 1993). The likelihood of juvenile justice and waiver involving a life sentence, in particular, may depend on the place of jurisdiction.
But place only reflects one possible influence on criminal justice decision making. Substantive justice recognizes the possibilities that there are reasons for deciding a penalty independent of any simple dichotomy of legal and extralegal variables. According to Edwin Lemert (1986), substantive justice “tempers the enforcement of the rules of law by using the discretionary powers of judges or administrators to consider particular features of individuals and their situations” (p. 528). Those making judgments about juveniles as if they were criminally responsible adults are required by law to draw on their legal discretion to decide which juveniles are most appropriately deserving of a life sentence. The multifaceted possibilities include the extent to which officials believe that the juvenile justice system can appropriately punish charged juveniles.
Thus, the waiver process in its exclusionary or automatic form is hardly deterministic of an arrest charge. All states provide opportunities to consider and then to reconsider the status of juveniles as criminally responsible adults. Zimring (1990) observed that every system of bringing juveniles into the criminal court provides “safety valves” for allowing a segment of juveniles to receive less than the proscribed adult penalties. These safety valves include “reverse waiver” procedures whereby a youth who is initially charged for a criminally responsible offense is judged to be deserving of juvenile justice.
One possible source of mitigation is race. Miller (1979) suggested that officials routinely classify youths into categories of deserving and undeserving youths. The deserving youths will always be seen as eligible for the more treatment-oriented system of juvenile justice. But could this possibly be the case when an act is so serious that it involves murder? In a deeper theoretical vein, Cohen (1985) would answer that the possibility always exists because the modern criminal justice system is, by design, complex with all sorts of “blurred” legal avenues that divide the offender population into the soft and hard ends of the system. For our purpose, the soft end of the system in the decision making of criminal justice officials means reproducing juvenile justice. The reproduction drawing on Miller is for those youths deemed deserving of treatment and the rehabilitative possibilities that have commonly been defined as the reformer’s vision of juvenile justice. The punishment may be there, but it is not a life sentence. Thus, there is always the possibility that some juveniles will be seen as deserving of treatment or the belief that some juveniles, no matter how serious their offense, should be subject to juvenile justice instead of criminal justice.
So, who are the youths deserving of juvenile justice? First, they are likely to look more like our own children. They should be closer in age to early adolescence rather than to late adolescence. The frequency of waiver should increase with age, and in many states where the age of criminal responsibility begins at 16, there is automatic waiver for all older adolescents. But age may not be the defining category that distinguishes a deserving youth from an undeserving one. Rather the race of a youth and the extent to which a youth looks like the majority population, which might include the racial attributes of the criminal justice officials themselves (Farrell, Ward, & Rousseau, 2009), may influence waiver decisions.
The Florida cases of Joe Sullivan and Lionel Tate illustrate the point about race having a possible independent effect on a life sentence independent of age. Both Sullivan and Tate are Black and at the time of their crimes were young adolescents, only 13 and 12 years of age, respectively (Bravin, 2009). Sullivan was sentenced to life without the possibility of parole for raping an elderly woman and burglarizing her home, whereas Lionel Tate was similarly sentenced for the murder of a 6-year-old girl he wrestled to death (Clary, 2001). Civil rights advocates demonstrated that Black youths are unfairly targeted for a life sentence. Representatives of the National Association for the Advancement of Colored People protested Lionel Tate’s sentence as another example of how “get-tough” juvenile justice reforms disproportionally impacted minority juveniles. Reverend Al Sharpton demonstrated and was quoted as saying that “all kinds of people are outraged,” and that “Charles Manson would be able to go before a parole board, while Lionel would not” (Clary, 2001, p. A-5).
The uproar over the life sentences of Black youths by civil rights leaders is not without scholarly support. In his account of the rise of late 20th century waiver legislation, Feld (1999) stated that the “political demonization of young Black males as morally impoverished ‘superpredators’ and the depiction of delinquents as responsible offenders have eroded the Progressives’ social construction of ‘childhood’ innocence and vulnerability”(p. 331). The disproportionate number minority youths in the juvenile and criminal justice system would suggest that race is important in predicting not only the criminal responsibility of juveniles but also their likelihood of a life sentence.
But the impact of race on the reproduction of juvenile justice is associated with a range of cumulative disadvantages (Peterson, Krivo, & Hagan, 2006). Minority youths are more often disadvantaged youths living in high-crime, inner-city neighborhoods. Cohort studies of juveniles have repeatedly found the risks of arrests for Black juveniles as significantly higher than that of White juveniles (Tracy, Wolfgang, & Figlio, 1990; Wolfgang, Figlio, & Sellin, 1972). In this sense, race may be considered a proxy measure for disadvantages that produce a record of delinquency (Tracy, 2002). Thus, the association between disadvantage and race can reflect a range of concerns that make Black youths more at risk of a life sentence than White youths.
Another factor to be taken into account is how race is not only associated with disadvantage but also with prior offending. Prior offending has been noted to be a marker in felony cases. A prior record of offending can be considered a way of distinguishing offenders responsible for extraordinary homicides (Farrell & Swigert, 1978). In the cases of Sullivan and Tate, it is not only the seriousness of their offense that seemed to matter but also their prior record of delinquency and crime.
Last but not least is the place of jurisdiction. The location of the place of jurisdiction, as previously noted, can have an independent impact on sentencing decisions. Substantive justice and the reproduction of juvenile justice may take place more so in counties where many citizens and their officials view a life sentence for a young adolescent as inappropriate. Just as Supreme Court justices disagree about the appropriateness of capital punishment for juveniles so too may communities be in disagreement as to the appropriateness of a life sentence.
Offense-Based Waiver in New York
As Mears and Field (2000) astutely noted, sentencing is complicated by a multitude of possibilities, and these possibilities raise options that may be unique to a state’s various legal options, including that of a criminalized juvenile court. To fully understand the waiver process in a particular state of jurisdiction requires intimate knowledge of its legal procedures. Given space limitations, only a brief summary of these procedures would seem appropriate.
Waiver may emanate from either juvenile or criminal justice officials. If it emanates from juvenile justice officials, a judicial waiver process is invoked. The alternative and dominant form of waiver is nonjudicial, especially in cases of serious violence. This means that the juvenile court judge or juvenile justice officials have no say in the decision to prosecute a juvenile as an adult. In states without judicial waiver, criminal justice officials have the discretion as to whether they wish to move a juvenile’s case forward to criminal court. The prosecutor is the main one to decide, although there are a multitude of legal avenues where decisions can be made for moving a juvenile’s case into the juvenile court.
In New York, juveniles are criminally responsible and are automatically placed in its criminal justice system for certain designated felony offenses, according to its 1978 Juvenile Offender Law (Singer, 1996). The lower age is 13 for murder. Thus, New York’s system of waiver would fall into the category of automatic waiver legislation. However, there is little that is automatic about waiver legislation (Singer, 1996). As is the case with adults, criminal justice officials have several legal avenues at their disposal for avoiding an offender’s life sentence. First, officials may simply reduce the offense charges from murder to a less severe charge, such as manslaughter. In New York, this kind of reduction in the severity of the charge could mean a juvenile’s conviction as a youthful offender instead of as a juvenile offender. The youthful offender category is a legal one and may apply until age 21. Conviction as a youthful offender not only means a mitigated sentence that is not nearly as severe as life but also a sealed record. This legal category reproduces aspects of juvenile justice, particularly its confidentiality requirement.
Another option for criminal justice officials in New York to avoid sentencing a juvenile to life is a reverse waiver. This would require officials to justify why a charged juvenile should not be considered criminally responsible. Instead of criminal court, the court of adjudication becomes the juvenile court (Family Court is the technical name in New York). As previously mentioned, this reverse waiver process is the safety valve that Zimring (1990) referred to as existing in every system of waiver. The justification for why an initially eligible juvenile should not be considered criminally responsible is substantive because officials must show the unique circumstances of the offense and the potential of juveniles for rehabilitation. By transferring a juvenile to juvenile court, criminal justice officials are able to avoid the maximum penalty of life. In juvenile court, the maximum possible sentence at that time is 5 years. Moreover, adjudication as a delinquent instead of a juvenile offender means that the juvenile will avoid a public criminal label.
There are less explicit techniques for avoiding a life sentence, which can simply mean the dismissal of the initial murder charge. This applies to adults as well as to juveniles. Criminal justice officials, on further investigation, may realize that they have arrested the wrong offender. Still, the charging process is a multifaceted one whereby the initial charge can be reduced to one in which the offender is considered less culpable and therefore eligible for a sentence that is significantly less than life in prison.
Case Processing Data
To calculate the risks of a life sentence, I draw on arrest, adjudication, and disposition data for a cohort of juveniles initially charged with murder between 1978 and 1985. During this period, there were 409 juveniles initially charged with murder in the first degree. Arrests, I assume, are a good indication of the total eligible population of juvenile offenders. The justification for looking at homicide arrest is provided by Sellin and Wolfgang’s (1964) procedural closeness rule, which essentially states that the best measure of the total amount of crime is its seriousness coupled with its administrative closeness to the actual offense. Murder is the penultimate crime, and the arrests are for juveniles who are booked directly in criminal court; that is, they are assumed to be criminally responsible.
The arrested population consists of juvenile offenders who at the time of their charged act of murder were 13-, 14-, and 15-year-olds. A detailed description of these data can be found in Singer (1996, chap. 5). If the case record was not complete for the limited variables of analysis, it was eliminated producing a total of 383 juveniles charged with murder.
Descriptive statistics for our variables of interest are displayed in Table 1. Age and race were coded as dichotomous variables. Black and Hispanic youths were classified as non-White. There was no significant differences in the analysis when these racial or ethic groups were analyzed separately. Moreover, the Hispanic youths were too few in non-New York City counties to provide a separate analysis. Age was combined by merging half the youths who were under the age of 15, which would include 13- and 14-year-olds. The median age for the sample population was 15.2 years.
Descriptive Statistics (N = 388)
The multiple-offense variable was measured based on more than one offense charge besides that of murder. A juvenile charged not only with a murder but also a robbery should be considered more serious than a juvenile charged with just a murder. Offense seriousness is an important indicator of sentencing and would fit the more formal aspects of justice. Similarly, prior offense would seem to fall into the category of compounding the seriousness of the offender’s offense. The repeat offender has already been given a warning, and officials may feel they have no other choice but to prosecute to the maximum extent allowed by law. The data on prior offense are limited because it can only be calculated for those juveniles who were arrested for acts in which they were earlier deemed to be criminally responsible. The likelihood of a prior offense would be more so the case for older juveniles than younger juveniles.
The jurisdiction of place variable is based on New York City and non-New York City counties. Because data on young juvenile murderers are sparse in non-New York City counties, they were combined into a single category. New York City counties were combined to represent all the boroughs of the city. The variable of place then represents the aggregate of cases from New York City or the rest of New York State.
Estimating the Risk of a Life Sentence
Less than half (42.5%) of the juveniles initially charged with murder were convicted in criminal court and sentenced to a maximum of life. This group of juvenile offenders was adjudicated as juvenile offenders. As indicated in Table 2, after sentencing as a juvenile offender, the next most common adjudication was dismissal (35.3%). Of course, dismissal of charge could apply to adults. But as our theoretical perspective states, there is the possibility of reproducing juvenile justice. This is indeed the case as indicated in Table 1, for 13.7% of those initially charged with murder were ultimately adjudicated as delinquents in juvenile court. The remaining 8.5% also received some form of juvenile justice but in criminal court with the milder disposition of youthful offender. This is a legal status that is applied to youths until the age of 21. Youthful offender status carries with it sentences substantially less than life and a sealed criminal record.
Adjudication of Juveniles Arrested for Murder (N = 388)
Our focus now switches to explaining the 42.5% of youths who were convicted in criminal court as juvenile offenders in contrast to the rest of the population. The bivariate relationship between race and juvenile offender conviction is significant; 48% of non-White juveniles compared with 38% of White juveniles were adjudicated as juvenile offenders. Age is also significant with nearly half of older juveniles sentenced to life compared with about 40% in the younger age category. For the prior offense category, 60% of those youths with a prior arrest faced a life sentence compared with only 40% of those without any recorded prior arrest. There is no significant difference between single offense and multiple offense charges and conviction in juvenile offender. The conviction rate by place is significant as well and represents the largest difference in juvenile and nonjuvenile offender status. The conviction rate in criminal court is 47% in New York City counties compared with only 22% for the rest of the state.
The question that remains is to identify the multivariate significance of offender attributes as well as the significance of place of jurisdiction. As revealed in Table 3, the logistic regression estimates show that only prior offense and location are significant. Once offense and New York City as a place of jurisdiction are taken into account, the relationship between race and juvenile offender status is not significant. This is the case for age as well. The only personal attribute to matter is prior arrest. Youths with a prior arrest had a 97% greater chance of conviction. The odds of a conviction were even greater for those who were charged in New York City. As indicated by the bivariate statistics, New York City youths faced more than twice the risk of conviction in criminal court and in turn a maximum sentence of life. In other words, the difference in place of jurisdiction cannot be explained only by offender attributes. The difference between a life sentence and no life sentence may be because of a higher proportion of minority youths resided in New York City counties where arrested juveniles are more likely to receive a juvenile offender conviction. Although race is not a marker for criminal responsibility according to these data, prior offense apparently is an important determinant of a life sentence.
Logistic Estimates of Juvenile Offender (N = 388)
Significant at .05 level.
Discussion
The risks of a New York City juvenile being sentenced to life is significantly greater than that of non-New York City juveniles. The earlier research that I cited points to larger jurisdictions having a more bureaucratized system of justice. We can assume that the higher rate of juvenile offender convictions in New York City reflects a more formalized system of punishing juveniles as if they were adults. In other words, there is less in the way of substantive justice to reproduce juvenile justice based on the higher rates of juvenile offender convictions in New York City counties when compared with the rest of New York State. Apparently location matters not just in real estate but also in the sentencing of juveniles to life.
Not surprisingly, prior offense matters as well and is independent of the place or county of jurisdiction. Criminal justice officials are apparently less likely to give a juvenile a second chance if the juvenile is a repeat offender. This follows other research that consistently points to waiver as a means for incarcerating the more serious and violent juvenile offenders. Prior offense history is significant, even though it is limited to earlier arrests as a juvenile offender in the criminal justice system. Given the limited time period juvenile offenders have in which to accumulate a criminal record, this measure of prior offense is quite limited. Unfortunately, data on arrests for which juveniles are not criminally responsible are not available. Surprisingly single homicide charges versus homicide plus another offense charge produced no significant difference in the probability of conviction in criminal court. Murder may be so serious that additional offense charges, such as robbery or rape, apparently make no difference in the likelihood of a juvenile offender conviction.
The data are limited not only in its measurement of prior offense and the particulars that go into perceived offense seriousness but also to a specific time period and state. The state agency data are produced not for scholarly purposes but to meet internal accounting of how many juveniles are processed in criminal court. An updated data set is unavailable because of newly developed agency rules that prohibit the analysis of juvenile arrest data for those youths that were not adjudicated criminally responsible. When statistical analysis ignores the point of arrest in determining the severity of punishment for juveniles, they introduce selection biases that are represented by the substantive screening of cases at various stages in the administration of justice (Feeley & Lazerson, 1983).
Unfortunately, I do not have the kind of data that would allow explication of where the sources of discretionary decision making rests in determining the status of juveniles charged initially with murder. Selection effects may be operating at the arrest charging stage of decision making. For instance, if New York City police officials are more selective in their initial charging as to the kind of offense that qualifies as a murder in the first degree, then the observed difference between the likelihood of a life sentence between New York City and non-New York City counties may be attributed to arrest charging selection effects. The jurisdictional difference observed may be a function of decision making at earlier versus later stages and this might exaggerate the observed jurisdictional difference.
The potential impact of more screening of serious cases by the police in one jurisdiction compared with another makes more sense for nonhomicidal offenses and less sense for homicidal offenses. When it comes to murder, the seriousness of the offense would seem to limit police discretion in the charging process. There is little reason to expect that the police in New York City counties would be operating in a manner that is different from non-New York City counties, especially for the offense of murder.
Although the majority of justices in the previously mentioned Supreme Court decisions advocated a categorical rule for deciding cruel and unusual punishment, a minority of justices advocated a case by case approach. The case by case approach is substantive justice and in fact is actually implemented in decisions that preceded the sentencing stage. Substantive justice reproduces juvenile justice at various stages in the criminal justice process, including those that begin soon after an initial arrest. Moreover, substantive justice is shaded by the way that officials may think of adolescence in more or less densely populated places of jurisdiction.
If there is less room to negotiate the status of juveniles in more densely populated jurisdictions, then the reasons for sentencing juveniles to life seems to be independent of race. Especially when we take into account prior offense, the influence of race diminishes as shown to be the case in the logistic multivariate results. This would support earlier research findings that suggest a range of disadvantages influence the apparent bivariate relationship between race and juvenile justice decision making (Tracy, 2002).
Conclusion
It may be time to look at the sentencing of juveniles in criminal court as the penultimate in complexity for the possibilities that criminal justice officials reproduce juvenile justice. Substantive justice exists for adults in the way that criminal justice officials draw on their legal discretion to decide if offenders are deserving of criminal punishment. Although substantive justice may be embedded in a singular system when it comes to adults, substantive justice involves a multitude of systems (juvenile as well as adult) when it comes to deciding the criminal responsibility of adolescents. Officials may draw on their legal discretion to invoke substantive justice to identify eligible juveniles as deserving of juvenile justice as opposed to criminal justice.
But substantive justice as in the reproduction of juvenile justice is only for a segment of youths, and the reasons for doing so needs to be explicated with more than just the limited state agency data that I have provided. The qualitative research conducted most recently at the adjudication and sentencing stage by Kupchik (2006) illustrates the importance of considering how officials react to the status of youths in the adult criminal justice system. To look deeper at the reasons for why a segment of juveniles would be seen as more or less criminally responsible, it is important to consider not just the generalized rationality of a system of justice. Lessons can be learned from the way other avenues of criminal justice have been studied to understand more fully the ways that juveniles in criminal court are subject to state mandated criminal responsibility.
Most recently, Manning (2008) in his analysis of police decision making has applied Mills’s (1959) vocabularies of motives to suggest that there is not one but a multitude of rationalities in police decision making. Obviously, many of these rationalities rest below the surface and cannot be easily explicated, especially with state agency data. Contemporary social theory has similarly recognized the importance of competing rationalities. Giddens (1984) drew on the term discursive consciousness to suggest that the contemporary world of human action is embedded in a kind of modernity that is built on expert systems of judgments. The trouble with these expert systems of judgments, which lack the normative consistency of the religions or the traditions of the past, is they often are in conflict with one another. This is the case apparently even when dealing with the most serious of offenses—recorded acts of murder. Bourdieu (1987) similarly made the point that the force of law takes place within a field of action and the consciousness that rests within that field. The way criminal justice officials see juveniles in their field of action may reflect not one kind of consciousness but a multitude of consciousnesses about the appropriateness of criminal court. This is apparently even the case when the juvenile has committed an act of murder.
Thus, it is not just at the sentencing stage that we should be observing the extent to which sentencing juveniles to life in prison is “unusual” or for that matter “cruel.” It is also at later as well as earlier stages that criminal justice scholars need to consider the full impact of adult punishments for juveniles. The sequencing of decision making that leads juveniles to spend the rest of their lives in prison requires an understanding of life with the possibility of parole. However, we know little about the decision making of parole officials and how the status of juveniles is taken into account when deciding to release an eligible youth. Future research needs to focus more explicitly than I have been able to on the less visible aspects of sentencing juveniles to life along with defined minimums.
It is also important to recognize the categorical approach mandated by the U.S. Supreme Court. It is an approach that in light of the data presented in this article may need to be extended to not just penalties of life without parole in nonhomicide cases but also to homicide cases where the maximum sentence is life. The justification for determining that life without parole is cruel and unusual punishment for nonhomicide offenses is the same for life with the possibility of parole. It may not be cruel, but based on the data presented here, a life sentence can be unusual, more so in some places of jurisdiction than in others. This is because disparities in the administration of wavier will persist unless juvenile justice is automatically reproduced for at least relatively young adolescents no matter how serious their offense.
Footnotes
The author declared no potential conflicts of interests with respect to the authorship and/or publication of this article.
The author received no financial support for the research and/or authorship of this article.