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The (Unfinished) Growth of the Juvenile

Justice System

CONOR WALSH

ABSTRACT
The American juvenile justice system has improved significantly from
the crude practices that lasted well into the twentieth century. A string of
recent Supreme Court decisions have dramatically altered sentencing
guidelines for juvenile offenders, recognizing the distinct cognitive
differences between children and adults. That recognition, however, stops
at the sentencing process. The operation of the juvenile justice system, from
the judiciary to the function of juvenile corrections facilities, fails to
recognize the malleability of the teenage mind. As a result, rehabilitation
goals are often not met and the juvenile system continues to mirror that of
adults, with a focus on punishment.
To combat this problem, this Note argues that the juvenile justice
system must be aggressively reformed to focus its efforts on rehabilitation.
It is nearly a guarantee that juvenile offenders will now rejoin society at
some point, and high recidivism rates suggest that the system is not
preparing them to successfully assimilate. This Note argues that one of the
roots of the recidivism issue is a lack of quality education for incarcerated
youth, and suggests a dramatic shift in the education process to focus on
quality classroom education supplemented with the option for vocational
training.

Candidate for Juris Doctor, New England Law | Boston (2016). B.A., Journalism,
University of Maryland (2012). I would like to thank my better half, Kristen Andrada, for her
unwavering support and patience. I would also like to thank my parents, Tom and Kathy, for
instilling me with a love for the written word and a work ethic from childhood. Finally, I
would like to dedicate this Note to my late grandfather, Edward J. Dullea, Jr., who pushed me
to reach my goals and taught me to believe in the inherent goodness of people.

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INTRODUCTION

eventy-one years ago, the state of South Carolina executed George


Stinney.1 Less than three months earlier, two young girls were
murdered in Georges hometown of Alcolu, and his accusation, trial,
sentencing, and execution were handled expeditiously.2 Just five-feet tall
and weighing ninety pounds, George did not fit in the states electric chair.3
A booster seat was required to fit him into the chairwith his feet not even
reaching the groundand when the lethal jolt of electricity was
administered, the states ill-fitting mask was thrown from his face.4 During
the final four minutes of Georges life, his teary, terrified eyes could be seen
by those witnessing the execution.5 He was fourteen years oldand in
2014, South Carolina vacated his conviction.6
The United States juvenile justice system has come a long way since
Stinneys execution.7 A series of Supreme Court decisions over the past
three decades have dramatically changed the way the court system views
juveniles, first banning the execution of juvenile offenders, then
disallowing mandatory life sentences for juvenile offenders.8 These
sweeping changes all recognize the distinct, developing nature of the
adolescent brain.9 While the sentencing process appears to have been
addressed, the overall function of the juvenile justice system continues to

1 See Campbell Robertson, South Carolina Judge Vacates Conviction of George Stinney in 1944
Execution, N.Y. TIMES (Dec. 17, 2014), http://www.nytimes.com/2014/12/18/us/judge-vacatesconviction-in-1944-execution.html.
2 David Edwards, New Evidence Could Clear 14-Year-Old Executed by South Carolina,
RAWSTORY (Oct. 3, 2011, 9:00 AM), http://www.rawstory.com/rs/2011/10/new-evidencecould-clear-14-year-old-executed-by-south-carolina/.
3

MARK R. JONES, SOUTH CAROLINA KILLERS: CRIMES OF PASSION 42 (2007).


Id.
5 Edwards, supra note 2.
6 Robertson, supra note 1. Stinneys confession was likely coerced, and a South Carolina
Appeals Court held that his court-appointed attorney did little to nothing to defend him.
Id.
7 See infra Part I.B.
8 See Miller v. Alabama, 132 S. Ct. 2455, 2476 (2012) (banning mandatory sentences of life in
prison without the possibility of parole for juvenile offenders); Graham v. Florida, 560 U.S. 48,
68 (2011) (holding cumulative sentences longer than a juveniles life expectancy was
unconstitutional); Roper v. Simmons, 543 U.S. 551, 578 (2005) (barring the execution of
juvenile offenders); Thompson v. Oklahoma, 487 U.S. 815, 838 (1988) (banning the execution
of offenders who were fifteen years old or younger at the time a crime was committed).
4

See Roper, 543 U.S. at 56970 (noting the developing nature of the adolescent brain, teens
impulsivity, and the fact that teens actions are unlikely to be evidence of irretrievabl[e]
deprav[ity]).

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fail incarcerated youth.10 The United States incarcerates three times the
number of juveniles than any other developed country and, with recent
sentencing reform, the overwhelming majority of those will rejoin society
at some point.11 Many incarcerated juveniles have had negative educational
experiences, having either dropped out of school, been held back a year or
more, or struggled with special education needs.12
With this in mind, the system is failing as it currently operates because
it does not prepare incarcerated youth to successfully assimilate back into
society.13 Society should view the system as an intervention opportunity.14
This Note argues that the United States must change its approach to the
system and shift its focus to rehabilitation through education. Through
comprehensive education in both an academic and vocational sense, the
juvenile justice system can serve incarcerated juveniles and society as a
whole by preparing them for a return to society and reducing recidivism
rates.
Part I of this Note examines the history of the American juvenile justice
system, from its crude beginnings to recent Supreme Court reform and
scientific advances. Part II analyzes the present-day function of the juvenile
justice system with a focus on its suspect education practices. Part III
discusses the inconsistencies between the Supreme Courts reforms and the
operation of the juvenile justice system, with a focus on the divide between
the theory behind juvenile justice and its function. Part IV addresses the
need to focus efforts on rehabilitation, as the Supreme Court has
guaranteed that the vast majority of juvenile offenders will one day rejoin
society. Finally, Part V argues that the system should be reformedusing
the Supreme Courts motivations for guidanceto focus on rehabilitation

10

See infra Part II.


See Lois M. Davis, et al., How Effective Is Correctional Education, and Where Do We Go from
Here?: The Results of a Comprehensive Evaluation, RAND CORP. iii (2014), available at
http://www.rand.org/content/dam/rand/pubs/research_reports/RR500/RR564/RAND_RR564.p
df.
11

12 See DIGNITY IN SCHOOLS, THE RIGHT TO EDUCATION IN THE JUVENILE AND CRIMINAL
JUSTICE SYSTEMS IN THE UNITED STATES 6 (2008), available at https://www.aclu.org/files/images/
asset_upload_file164_38663.pdf (outlining the academic difficulties most incarcerated youth
faced prior to being arrested).
13

See
CHILD
TRENDS
DATA
BANK,
JUVENILE
DETENTION,
available
at
http://www.childtrends.org/wp-content/uploads/2012/05/88_Juvenile_Detention.pdf
[hereinafter JUVENILE DETENTION] (noting that the national recidivism rate for juveniles is
roughly 75%, and as high as 80% in some jurisdictions).
14 See Katherine Twomey, Note, The Right to Education in Juvenile Detention Under State
Constitutions, 94 VA. L. REV. 765, 773 74 (2008) (noting how studies indicate that juveniles who
receive sound education while in detention centers are more likely to return to school upon
release and secure employment later in life).

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through revamped education systems, intended to help both the individual


and society by preparing juveniles for reentry into society and reducing
recidivism rates.
I.

Background
A. The Primitive Beginnings of the American Juvenile Justice System
1.

The Development and Operation of the Early Juvenile


Justice System

The American juvenile justice system is nearly as old as the nation


itself.15 Its roots derive from the Society for the Prevention of Pauperism, a
progressive group formed in 1817 in New York City with the intention of
rescu[ing] children from the degradations of the adult prison.16 The
juvenile reform centers that stemmed from the work of the Society and
other progressive groups were known as Houses of Refuge, first
established in New York City in 1825 before expanding across the
country.17 Houses of Refuge were developed as schools for instruction
rather than punishment, and sought to educate, reform, and train juvenile
delinquents to be functioning members of society after their stay.18
From the beginning, however, Houses of Refuge operated in stark
contrast to their stated goals.19 Initially founded when the United States
was rapidly urbanizing and welcoming European immigrants in droves,
many scholars have observed ulterior motives in the beginnings of the
juvenile justice system: The House of Refuge . . . came to function as a
mechanism for gaining control over the children of the poor. . . . From its
inception, [the House of Refuge was] a race- and class-driven enterprise,
intended explicitly for other peoples children.20 Houses of Refuge had
absolute authority in detaining childrenjuveniles received no due
process.21 It was common practice for these agents to walk through
immigrant neighborhoods of New York and round[] up whomever they
pleased for largely undefined reasons like impoverishment, delinquency,

15

NELL BERNSTEIN, BURNING DOWN THE HOUSE: THE END OF JUVENILE PRISON 38 (2014).
Id.; Patrick M. Sullivan, Building the Foundation for Juvenile Justice, THE CORRECTIONAL
CONNECTION (Mar. 19, 2007), http://www.corrections.com/articles/15285-building-thefoundation-for-juvenile-justice. The Society for the Prevention of Pauperism was later
renamed the Society for the Prevention of Juvenile Delinquency. BERNSTEIN, supra note 15, at
38.
16

17

BERNSTEIN, supra note 15, at 39; Sullivan, supra note 16.


Sullivan, supra note 16.
19 See BERNSTEIN, supra note 15, at 3940.
20 Id. at 39.
21 See id. at 40.
18

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and neglect.22 Despite practices like reform schools, apprenticeships, and


other positives of the Houses of Refuge, children were still jailed or
imprisoned with little or no consideration of whether they had committed
a crime.23 The House of Refuge in New York grew by more than 6000%
between 1825 and 1860, and with it came a marked departure from the
initial goals of education and reform.24
2.

The Parens Patriae Doctrine and the Similarities Between


the Juvenile and Adult Systems

These practices were justified by the parens patriae doctrine.25 At its


core, the doctrine allows the state to assume a parental role over juveniles
under the assumption that minors are always incompetent.26 The states
role under parens patriae is twofold: (1) to guide and rehabilitate children;
and (2) to protect society.27 As a result, the state has been justified to act in
childrens best interest in a nearly limitless capacity, a power that remains
today.28 Parens patriae, therefore, grants state agents wide discretion to act
in the best interests of juveniles because minors require a greater degree
of care and protection, and thus a lesser degree of liberty, than do adults.29
The parens patriae practice continued even as Houses of Refuge began
to be phased out in 1899, when Cook County, Illinois, formed the nations
first juvenile court with the Juvenile Court Act of 1899.30 This legislation
sparked nationwide reform, but juvenile courts continued to fall short of
the systems idealistic goals.31 While the systems stated goal was
reformation, not punishment, it remained common for children to be
institutionalized despite having not committed a crime.32 And while
education and reform remained as, at some level, a part of the juvenile
justice system, it was commonplace in the nineteenth and early twentieth

22

Id.
CLIFFORD E. SIMONSEN, JUVENILE JUSTICE IN AMERICA 24 (3d ed. 1991).
24 See BERNSTEIN, supra note 15, at 41. The New York House of Refuge began with nine
residents in 1825 and grew to 560 by 1860. Id.
25 Id. at 4546.
26 Claudia Worrell, Note, Pretrial Detention of Juveniles: Denial of Equal Protection Masked by
the Parens Patriae Doctrine, 95 YALE L.J. 174, 175 (1985).
23

27

Id. at 176.
See id. at 17677; BERNSTEIN, supra note 15, at 4546.
29 Worrell, supra note 26, at 177 (citing Schall v. Martin, 467 U.S. 253, 264 (1984)).
30 BERNSTEIN, supra note 15, at 45.
31 Id. at 47.
32 Id. at 4748.
28

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centuries for institutionalized children to spend much of the day working


and as few as thirty minutes per day in the classroom.33
The departure between the systems reformation goals and its
operation can be seen in the juvenile offender sentencing.34 The
progressives that pushed for the establishment of a separate justice system
did so to rescue children from the degradations of the adult system.35
Despite understanding the necessity of distinguishing between juvenile
and adult offenders, however, juvenile sentences still mirrored adult
sentencing.36
One needs to look no further than the most extreme form of
punishment at the American justice systems disposal for evidence: the
death penalty.37 Thompson v. Oklahoma marked the first time the Supreme
Court found cruel and unusual punishment in a juvenile sentencein
1988holding that the execution of a defendant who was fifteen years old
or younger when he or she committed a crime was unconstitutional.38
When Thompson was decided, most state legislatures had not tackled the
question of a minimum age for the death penalty, and nineteen of the states
authorizing capital punishment failed to include a minimum age in their
death penalty statutes.39 The Supreme Court noted that, while one could
argue that the execution of a ten-year-old child could theoretically occur,
it is self-evident that such an argument is unacceptable.40 However,
American history is littered with such executionsfrom the 1642 hanging
of Thomas Granger for committing bestiality when he was sixteen years
old to the 1944 execution of fourteen-year-old George Stinney.41 In fact, as

33 Id. at 41. Particularly in the early days of the Houses of Refuge, children were separated
into groups of boys of more vicious character and younger and better boys. Id. The more
vicious children would receive the bare minimum time in the classroom, while the children
looked upon more favorably worked only six hours per day and spent an additional hour
studying. Id.
34 See Stuart Banner, When Killing a Juvenile was Routine, N.Y. TIMES (Mar. 5, 2005),
http://www.nytimes.com/imagepages/2005/03/05/weekinreview/20050306_BANNER_CHART
.html.
35

BERNSTEIN, supra note 15, at 38.


See Banner, supra note 34.
37 See id.
38 Thompson v. Oklahoma, 487 U.S. 815, 838 (1988); see Banner, supra note 34.
39 Thompson, 487 U.S. at 82627.
40 Id. at 82728.
41 Banner, supra note 34. Stinneys execution is a particularly black mark on the juvenile
justice system. See Robertson, supra note 1. After being accused of the murder of two white
girls in South Carolina, Stinneywho was African Americanwas tried, convicted, and
executed in fewer than three months. Id. His conviction was posthumously vacated in 2014. Id.
36

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recently as the 1940s, a juvenile offender was executed in the United States
nearly once every two months.42
B. Supreme Court Reform
Thompson marked the beginning of sweeping change in how the court
system views juvenile offenders, but change was gradual.43 The Supreme
Court was initially hesitant to expand on Thompsonas demonstrated by
the 1989 decision in Stanford v. Kentuckybut from 2005 to 2012 three
landmark decisions (Roper v. Simmons, Graham v. Florida, and Miller v.
Alabama) marked a dramatic shift in the judiciarys view of juvenile
offenders.44
In Stanford, the Court permitted the execution of defendants who were
sixteen and seventeen years old at the time their crimes were committed.45
Both petitioners had been involved in homicidesa seventeen-year-old
convicted of first-degree murder, and a sixteen-year-old who pled guilty to
first-degree murderand were each sentenced to death.46 The appellants
argued that contemporary society views capital punishment of 16- and 17year-old offenders as inappropriate . . . .47 The Court rejected the
petitioners statutory and policy arguments and affirmed their
convictions.48 Stanford remained good law until 2005, when the Court
began rapidly expanding on its decision in Thompson.49
1.

Roper v. Simmons

In Roper v. Simmons, seventeen-year-old Christopher Simmons was


convicted of a heinous murder.50 The state of Missouri sought the death
42

Banner, supra note 34.


See, e.g., Miller v. Alabama, 132 S. Ct. 2455, 2476 (2012) (banning a mandatory sentence of
life in prison without the possibility of parole for juvenile offenders); Graham v. Florida, 560
U.S. 48, 74 (2010) (holding cumulative sentences longer than a juveniles life expectancy was
unconstitutional); Roper v. Simmons, 543 U.S. 551, 568 (2005) (barring the execution of
juvenile offenders).
43

44 See Miller, 132 S. Ct. at 2476; Graham, 560 U.S. at 67; Roper, 543 U.S. at 568; Stanford v.
Kentucky, 492 U.S. 361, 37880 (1989).
45 Stanford, 492 U.S. at 37880.
46 Id. at 36568.
47 Id. at 373.
48 Id. at 380.
49 See, e.g., Miller, 132 S. Ct. at 2476 (banning a mandatory sentence of life in prison without
the possibility of parole for juvenile offenders); Graham, 560 U.S. at 74 (holding cumulative
sentences longer than a juveniles life expectancy was unconstitutional); Roper, 543 U.S. at 568
(barring the execution of juvenile offenders).
50 Roper, 543 U.S. at 55657. Simmons was a junior in high school at the time of the crime
and said to friends that he wanted to murder someone. Id. at 556. He proceeded to plan a

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penalty, citing, among other factors, the depravity of mind [which] was
outrageously and wantonly vile, horrible, and inhuman.51 The jury
recommended the death penalty after finding that the state provided
sufficient evidence of aggravating factors to warrant a death sentence, and
the case was subsequently appealed.52 Ultimately, the Missouri Supreme
Court overturned the sentence based on Simmonss impulsiveness and lack
of maturity, citing developments since Stanford as evidence of a newfound
national trend against capital punishment of juvenile offenders.53
After granting certiorari, the Supreme Court affirmed the decision in
holding that imposing the death penalty on offenders under eighteen years
old constituted an Eighth Amendment violation.54 In its decision, the Court
noted three differences between juvenile offenders and adult offenders: a
lack of maturity, susceptibility to outside influence, and the fact that
personality traits of juveniles were still developing.55 The developing
nature of juveniles limits their culpability, and the differences between
juvenile and adult offenders are too marked and well understood to risk
allowing a youthful person to receive the death penalty despite insufficient
culpability.56 These differences make it difficult even for psychologists to
differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.57 For those reasonsplus the fact
that the United States was joined only by Iran, Pakistan, Saudi Arabia,
Yemen, Nigeria, the Democratic Republic of the Congo, and China as
countries to have executed a juvenile offender since 1990the Court drew
the line at eighteen years old at the commission of a crime for the death
penalty to be levied.58

burglary, which would end in murder and throwing the victim off a bridge. Id. Simmons and
two friends executed their plan on Shirley Crooka woman Simmons had previously been
involved in a car accident withand Simmons later bragged to friends that he murdered Mrs.
Crook because the bitch seen [his] face. Id. at 55667.
51

Id. at 557.
Id. at 55859.
53 See Roper, 543 U.S. at 55960.
54 See id. at 568.
55 Id. at 56970.
56 See id. at 57273.
57 See id. at 573.
58 See id. at 57475, 577. The Court noted the relative arbitrariness of drawing the line at
eighteen years old, explaining [t]he qualities that distinguish juveniles from adults to not
disappear when an individual turns 18 and how some under 18 have already attained a
level of maturity some adults will never reach. Roper, 543 U.S. at 574. The Court still,
however, recognized a need for a line to be drawn, and opted for eighteen because that is
where society draws the line for many purposes between childhood and adulthood. Id.
52

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Graham v. Florida

The Roper decision recognized the importance of acknowledging


societal and scientific changes in the justice system.59 Less than a decade
later, Graham v. Florida barred courts from sentencing juvenile nonhomicide offenders to consecutive terms that would exceed the offenders
life expectancy.60 Citing Roper, the Supreme Court again noted the three
factorsa lack of maturity, susceptibility to outside influence, and the fact
that personality traits of juveniles were still developingwhich decrease
juvenile culpability, and described how this decreased culpability should
exclude juveniles from the most serious sentences.61 The Court further
noted the scientific advances regarding the differences between the
juvenile and adult brain, particularly how juveniles are much more capable
of change than adults and are therefore more capable of rehabilitation.62
3.

Miller v. Alabama

Most recently, the Supreme Court further expanded the juvenile


sentencing protections to bar life sentences without the possibility of parole
for all juvenile offenses, including homicide.63 Miller v. Alabama came
before the Supreme Court following mandatory life sentences handed
down to Evan Miller and Kuntrell Jackson, two fourteen-year-olds
convicted of murder.64 Both cases originated prior to Roper and Graham,
and Jackson did not initially challenge his sentence.65 Miller did challenge
his sentence, but the Alabama Supreme Court declined to review.66 They
jointly petitioned the Supreme Court for relief, and the Court granted
certiorari, ultimately holding that mandatory life sentences without the
59

See id. at 578.


See Graham v. Florida, 560 U.S. 48, 82 (2010). The petitioner was sixteen-years-old when
he committed armed burglary, followed by a probation violation. Id. at 48. The result of this
probation violation was a mandatory life sentence that could only be shortened by executive
action. See id.
61 Id. at 68 (citing Roper, 543 U.S. at 56970).
62 Id. at 68.
63 Miller v. Alabama, 132 S. Ct. 2455, 2476 (2012).
64 See Mary Berkheiser, Developmental Detour: How the Minimalism of Miller v. Alabama Led
the Courts Kids are Different Eighth Amendment Jurisprudence Down a Blind Alley, 46 AKRON L.
REV. 489, 48990 (2013). Jackson was charged as an adult and convicted of capital felony
murder after a co-conspirator of his in a video store robbery shot and killed the store clerk.
Miller, 132 S. Ct. at 2461. He was sentenced to life in prison without parole. Id. Miller was also
fourteen at the time of the commission of his crime. Id. at 2462. After a drug deal, Miller stole
the drug dealers wallet, leading to an altercation that ended with Miller beating the man to
death with a baseball bat. Id.
60

65
66

Miller, 132 S. Ct. at 2461.


Id. at 2463.

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possibility of parole for juvenile offenders constituted cruel and unusual


punishment under the Eighth Amendment.67
In its decision, the Court again recognized the role of an offenders age
in his culpability, and held that the mandatory penalty schemes in
Alabama and Arkansas prevent the sentence from taking [into] account
such juvenile considerations.68 The Court likened mandatory life sentences
on juveniles to the death penalty, and emphasized how a judge must have
the opportunity to consider the mitigating qualities of youth in
determining an appropriate sentence.69 The Court noted that by making
youth (and all that accompanies it) irrelevant to imposition of that harshest
prison sentence, such a scheme poses too great a risk of disproportionate
punishment.70
The decisions in Roper, Graham, and Miller represent a progressive shift
in the American justice systems treatment of juvenile offenders.71 Each of
these decisions, however, is narrowly tailored to the specific issues that
came before the Court.72 As such, lower courts and the justice system have
relatively little guidance in applying these decisions, and the application of
this new recognition of the stark differences between juvenile and adult
offenders has demonstrated confusion and led to inconsistency.73
C. Post-Graham Circuit Split
The inconsistency between the motivation behind the Supreme Courts
juvenile sentencing reforms and the application of these changes can be
seen in the split among the Federal Circuit Courts that surfaced after
Grahams bar on cumulative sentences surpassing the life expectancy of a
juvenile offender.74
1.

The Ninth Circuit: Moore v. Biter

In keeping with Graham, the Ninth Circuit held in 2013 that an


aggregate sentence of 254 years for a juvenile offender constituted cruel

67

Id. at 2464.
Id. at 2466.
69 Id. at 2467 (citing Johnson v. Texas, 509 U.S. 350, 367 (1993)).
70 Id. at 2469.
71 See Adam Liptak & Ethan Bronner, Justices Bar Mandatory Life Terms for Juveniles, N.Y.
TIMES (June 25, 2012), http://www.nytimes.com/2012/06/26/us/justices-bar-mandatory-lifesentences-for-juveniles.html.
72 See Berkheiser, supra note 64, at 48990.
73 See infra Part I.C.
74 See Goins v. Smith, 556 Fed. Appx 434, 439 (6th Cir. 2014); Moore v. Biter, 725 F.3d 1184,
1194 (9th Cir. 2013); United States v. Walton, 537 Fed. Appx 430, 437 (5th Cir. 2013).
68

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and unusual punishment in Moore v. Biter.75 The petitioners sentence


guarantees that he will die in prison, which is in direct conflict with the
prohibition in Graham that it was beyond the States power to determine
that a juvenile would never be suited to reenter society.76 A sentence of this
length, the court held, was equivalent to a life sentence.77 As such, any
effort at rehabilitation or reform would be irrelevant, which the court held
would be irreconcilable with Grahams mandate that a juvenile
nonhomicide offender must be provided some meaningful opportunity to
reenter society.78
2.

The Fifth Circuit: United States v. Walton

The Fifth Circuit provided an example of sentencing consistent with


Grahams restrictions in 2013, when it decided United States v. Walton.79 The
appellant, Jamal Walton, had pled guilty in the Federal District Court for
the Eastern District of Louisiana for conspiring to use a firearm in a violent
crime and a carjacking resulting in death.80 He was sentenced to forty years
imprisonment, and, in keeping with Graham, later appealed the conviction
under an Eighth Amendment claim.81 The Fifth Circuit ultimately held that
the District Court did not abuse its discretion in Waltons sentencing,
stating that Graham (and Miller) were inapplicable in this sentence, as a
forty-year sentence for a juvenile did not equate to a life sentence.82
3.

The Sixth Circuit: Goins v. Smith and the Resulting Circuit


Split

The Circuit split arose in the Sixth Circuit in 2014, when Goins v. Smith
presented the court with a sentence length that fell between those in Moore
and Walton.83 James Goins was convicted of a slew of felonies in connection
with his participation in two home invasions, including attempted murder,

75 Moore, 725 F.3d at 119394. In this decision, the Ninth Circuit also held that Graham
should be applied retroactively, as the petitioner in Moore was seeking relief from a 1992
sentence. Id.
76

Graham v. Florida, 560 U.S. 48, 74 (2010); Moore, 725 F.3d at 119394.
See Moore, 725 F.3d at 119394.
78 Id. at 1194 (citing Graham, 560 U.S. at 74).
79 Walton, 537 F. Appx at 437.
80 Id. at 43132.
81 Id. at 432.
82 Id. at 437.
83 Compare Goins v. Smith, 556 F. Appx 434, 435 (6th Cir. 2014) (affirming a sentence of
eighty-four years in prison), with Moore v. Biter, 725 F.3d 1184, 119394 (9th Cir. 2013)
(declaring sentence of 254 years unconstitutional), and Walton, 537 F. Appx at 437 (affirming a
sentence of 480 months in prison).
77

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kidnapping, and felonious assault.84 He was sixteen years old at the time of
the crime.85 The trial court imposed the maximum sentence for each of the
appellants convictions, amounting to an aggregate prison term of over
eighty-four years.86
Goins appealed his conviction, citing Graham and argued that the
length of his sentence constituted an Eighth Amendment violation.87 Citing
another Sixth Circuit case, the Goins court held that Graham established no
clear precedent relating to aggregate sentencing even if it would amount to
the equivalent of a life sentence.88 Relying on that earlier decision and the
possibility that Goins may qualify for parole at some point, the Sixth
Circuit upheld his sentence.89
As demonstrated by these three decisions, the closer a sentence is to an
actual life expectancy, the more ambiguity exists.90 Further, there appears
to be a disparity in focus among the courts.91 In Moore, for instance, the
Ninth Circuit placed a particular emphasis on the systems rehabilitation
goals.92 In contrast, the Sixth Circuit focused far less on rehabilitation.93
This Circuit split not only demonstrates confusion among the courts as to
how to apply the Supreme Court reformations, but also the conflicting
goals of punishment and rehabilitation for juvenile offenders.94
D. Scientific Advancements Regarding the Juvenile Brain
The teenage years are a formative time for all people, a development
that is not limited to physical maturity.95 Recent medical and technological
advancements have allowed researchers to study the brains development,
and changes that occur during ones teenage years have been characterized

84

Goins, 556 F. Appx at 435.


Id.
86 Id. at 436.
87 Id. at 437.
88 Id. at 439 (citing Bunch v. Smith, 685 F.3d 546, 550 (6th Cir. 2012)).
89 Id. at 43940.
90 See Goins, 556 F. Appx at 435 (affirming a sentence of eighty-four years in prison); Moore
v. Bitter, 725 F.3d 1184, 119394 (9th Cir. 2013) (declaring sentence of 254 years
unconstitutional); United States v. Walton, 537 F. Appx 430, 437 (5th Cir. 2013) (affirming a
sentence of 480 months in prison).
85

91

Goins, 556 F. Appx at 440.


Moore, 725 F.3d at 1194.
93 Goins, 556 F. Appx at 440.
94 Compare Moore, 725 F.3d at 1194, with Goins, 556 F. Appx at 440.
95 See generally The Teen Brain: Still Under Construction, NATL INST. OF MENTAL HEALTH
(2011), available at http://www.nimh.nih.gov/health/publications/the-teen-brain-still-underconstruction/index.shtml.
92

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as striking.96 Research has indicated that the adult brain does not fully
appear until one is in his or her early twenties.97
Evidence of the developing nature of the teenage brain can be seen in
the contrast between physical and mental maturity between the ages of
fifteen and nineteen.98 While this may be the peak in ones physical
strength and physical health, the brain is far from mature.99 This can lead
to poor decision-making, as evidenced by dramatic spikes in mortality
rates, crime rates, and rates of alcohol abuse.100 This is not to say that the
teenage brain is inferior to that of an adult, as the capacity for learning and
the thirst for independence point to the teenage brains high function.101
While the development of the adolescent brain can lead to problems, it
also allows for enormous learning potential.102 With newly developed
ways of thinking, the teenage years are one of significant development.103
This leads to questioning authority, debating, development of values, and
making mistakes (and, generally, learning from them).104 Due to these
advances in cognitive function, social development, and physical
development, a person has not truly developed its adult mind and
personality until after the teenage years.105

96

Id.
Id.
98 Id.
99 Id.
100 Id. Between the ages of fifteen and nineteen, mortality rates based on injury are six times
that of children between the ages of ten and fourteen. Id. Risky behaviors are the likely result
of the developing nature of the brains frontal lobes, or the CEO of the brain. See Pat Wolfe,
The Adolescent Brain: A Work in Progress, MIND MATTERS, INC. (2015), available at
http://patwolfe.com/2011/09/the-adolescent-brain-a-work-in-progress/.
101 The Teen Brain: Still Under Construction, supra note 95.
102 Jay N. Giedd, The Teen Brain: Primed to Learn, Primed to Take Risks, THE DANA FOUND.
(Feb. 26, 2009), http://www.dana.org/Cerebrum/2009/The_Teen_Brain__Primed_to_Learn,_
97

Primed_to_Take_Risks/.
103 CLEA MCNEELLY & JAYNE BLANCHARD, THE TEEN YEARS EXPLAINED: A GUIDE TO
HEALTHY ADOLESCENT DEVELOPMENT 21 (2009), available at http://www.jhsph.edu/research/
centers-and-institutes/center-for-adolescent-health/_includes/interactive%20guide.pdf.
104 Id.
105 See
Social Development During the Teen Years, CLEV. CLINIC CHILD.,
http://my.clevelandclinic.org/childrens-hospital/health-info/ages-stages/adolescence/hicSocial-Development-During-the-Teen-Years (last visited Mar. 14, 2016).

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II. Despite the Supreme Courts Reforms, the Operation of the Juvenile
Justice System Still Fails to Recognize the Stark Differences Between
Juvenile and Adult Offenders
A. The Daily Operation of Juvenile Justice Facilities
In todays justice system, any person younger than eighteen years old
is generally considered a juvenile.106 The juvenile justice system is the
collection of institutions that a juvenile offender travels through, ranging
from the charging stage to the completion of the punishment.107 There are
two fundamental theories at contrast in the juvenile justice system: the
treatment model and the justice model.108 The treatment model focuses on
the rehabilitation of juvenile offenders, but financial concerns often limit
the length of stays in justice facilities, undercutting therapeutic goals.109
Some point to these financial concerns as the root of the high recidivism
rates of juvenile offenders.110 In contrast, the justice model emphasizes
sentencing, custody, and punishment with the judge serving as a
guardian throughout the process.111 The current model of the American
juvenile justice system incorporates parts of each of these models.112
As of 2013, there were 66,332 children in juvenile facilities, 87% of
which were male.113 Of those, as many as 75% are estimated to be
incarcerated later in life, a number that reaches higher than 80% in certain
states.114 Many point to the function of the juvenile justice facilities
themselves as the root of that recidivism problem.115

106

BLACKS LAW DICTIONARY 999 (10th ed. 2014). There is no federal statute defining a
juvenile, so the definition differs among the individual states. See Mike Fritz & April Brown,
Juvenile Education: Inside a Confined World, PBS (Feb. 2, 2012, 11:51 AM),
http://www.pbs.org/newshour/updates/american-graduate-jan-june12-richardross_02-02/.
While eighteen is the standard cutoff, those as old as twenty-four years old can be considered
juveniles in some jurisdictions. Id.
107

BLACKS LAW DICTIONARY, supra note 106.


SIMONSEN, supra note 23, at 199.
109 Id. at 199200.
110 Id.; see also Brittany Bostic, Reducing Recidivism for Juvenile Criminal Offenders, MICH.
YOUTH VIOLENCE PREVENTION CENTER (Mar. 11, 2014), http://yvpc.sph.umich.edu/2014/03/11/
exploring-rehabilitation-programs-juvenile-criminal-offenders/ (detailing the high recidivism
rates for juveniles and possible solutions to the problem).
108

111

See SIMONSEN, supra note 23, at 200.


See id. at 199.
113 See BERNSTEIN, supra note 15, at 7. The youth incarceration rate in the United States is
more than three times higher than the highest rates in any other developed nations. Davis et
al., supra note 11.
114 See JUVENILE DETENTION, supra note 13; BERNSTEIN, supra note 15, at 7. The juvenile
recidivism rate is comparable to the national average, as 76.6% of prisoners released in 2005
112

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The goal of creating a separate justice system for juveniles recognizes


the differences between juvenile and adult offenders.116 Despite this, most
state juvenile institutions look and feel very much like the adult
correctional institutions they were intended to supplant.117 The similarities
to the adult prison system begin as soon as a juvenile arrives at an
institution.118 The intake begins with the juvenile being photographed,
fingerprinted, surrendering personal belongings, and sometimes even
submitting a DNA sample.119 The juvenile is then strip-searched, bathed,
deloused, and given a uniform, often followed by an orientation of sorts.120
Finally, the juvenile will be introduced to his living quarters, usually either
a cell or a bunk in an open dormitory.121
In general, daily life in a juvenile detention center is one of routine, a
carefully synchronized march between cell, showers, cafeteria, schoolroom,
dayroom, yard, and cell . . . .122 Despite the fact that juvenile detention
centers primarily exist to keep children out of adult prison facilities,
practices common in adult prisons, such as solitary confinement and
maximum security holdings, remain commonplace.123
B. The Lack of Quality Education in Juvenile Justice Facilities
The U.S. Department of Education emphasized the importance of
education within juvenile detention centers, noting in a letter to the chief
school officers and attorneys general in each of the fifty states that with
few exceptions, each one of these young people will eventually reenter our
communities . . . . High-quality correctional education is one crucial means
of supporting their future success and thereby strengthening the
communities they return to.124 In fact, studies have pointed to a lack of
quality education, both academically and vocationally, as a major factor in
were arrested within five years of their release. Compare Recidivism, NATL INST. OF JUST.,
http://www.nij.gov/topics/corrections/recidivism/Pages/welcome.aspx (last modified June 17,
2014), with JUVENILE DETENTION, supra note 13.
115

See BERNSTEIN, supra note 15, at 7.


See id. at 22.
117 Id.
118 See id. at 2223.
119 Id. at 22.
120 Id. at 23.
121 BERNSTEIN, supra note 15, at 23.
122 See id. at 24.
123 See id. at 2627.
124 See Letter from Arne Duncan, Secy of Educ., and Eric H. Holder, Jr., Atty Gen. of the
United States, to Chief State Sch. Officers and State Attys Gen. (Dec. 8, 2014), available at
http://www2.ed.gov/policy/gen/guid/correctional-education/csso-state-attorneys-generalletter.pdf.
116

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the failure of many formerly incarcerated youths upon reentering


society.125 The need for quality education in juvenile facilities is further
highlighted by the fact that incarcerated youth typically score below their
grade level.126
The gap between the educational needs of incarcerated youth and the
reality of education within juvenile facilities is significant.127 Most states
have statutory requirements for juveniles to spend at least six-and-a-half
hours each day in an educational setting, but the effectiveness of the
education programs within juvenile facilities has been questioned by
many.128 While the goal of education is to provide individuals with
personal skills that prepare them to find patterns of behavior free from
delinquent activities or provide skills to others to enable them to help
youths develop requisite skill,129 the function of the education system
within juvenile facilities often fails to reach those goals.130
While specific, comprehensive details about education in the juvenile
justice system are difficult to obtain, case studies and personal accounts
suggest significant inadequacies.131 Shortages in properly trained teachers,
classroom materials, and availability of special education create a learning
environment that often fails to meet statutory standards.132 Beyond that,
many juvenile facilities simply fail to meet required education standards,
as evidenced by a 2005 study of Californias juvenile corrections program,
which concluded that all of the studied institutions [were] failing to
provide the mandated four hours daily of educational instruction on a
consistent basis.133
Studies have shown that juveniles who receive adequate education
while in detention centers are more likely to return to school after being
released and eventually secure employmentan advantage to both the

125

See, e.g., Davis et al., supra note 11.


DIGNITY IN SCHOOLS, supra note 12, at 6. Roughly 75% of those in juvenile facilities have
failed at least one class in the past, and up to 50% have been held back by at least one grade in
school. Id.
127 See Mike Fritz & April Brown, Juvenile Education: Inside a Confined World, PBS (Feb. 2,
2012, 11:51 AM), http://www.pbs.org/newshour/updates/american-graduate-jan-june12richardross_02-02/.
126

128

See id.; BERNSTEIN, supra note 15, at 2526.


SIMONSEN, supra note 23, at 390.
130 See BERNSTEIN, supra note 15, at 2526.
131 See Twomey, supra note 14, at 771.
132 Id. at 77172.
133 SELE NADEL-HAYES & DANIEL MACALLAIR, CTR. ON JUVENILE AND CRIMINAL JUSTICE,
RESTRUCTURING JUVENILE CORRECTIONS IN CALIFORNIA: A REPORT TO THE STATE LEGISLATURE
1112 (2005), available at http://files.eric.ed.gov/fulltext/ED495135.pdf.
129

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individual and to society at large.134 This has sparked reform in some


jurisdictions, with the Northern Virginia Juvenile Detention Center taking
center stage as a roadmap for other jurisdictions.135 The facility contains a
wing for its school that provides small classes focused on participation and
project-based learning.136 The educators focus on viewing students not as
criminals or prisoners, but in a light no different than any other public
school student.137 This approach has yielded results to this point, as teacher
Kathleen Fitzpatrick notes that she has seen students slowly but surely
remove the personal barriers they have so carefully built over the years.
They trust the education program is here to offer them a chance for change
and provide new opportunities.138 For many students, Fitzpatrick notes,
the education they are receiving in the detention center may be the first
opportunity theyve ever been given to explore different sides of
themselves, tell their story, and truly practice being self aware.139
Based on the successes of programs like the one at the North Virginia
Juvenile Detention Center, U.S. Attorney General Eric Holder and
Education Secretary Arne Duncan released a report in December 2014
intended to help improve the quality of education in the juvenile justice
system.140 This report seeks to guide educators and administrators in
overcoming the specific challenges education faces in juvenile detention
centers.141 The report presents five guiding principles aimed at overcoming
those challenges: (1) a safe environment that encourages and prioritizes
education; (2) appropriate funding to allow for adequate education; (3)
employment and retention of quality, skilled educators; (4) a rigorous
curriculum that meets each states education standards; and (5) formal

134 See Twomey, supra note 131, at 77374. As a result of the high cost of incarceration, each
juvenile that does not end up living a life of crime saves taxpayers as much as $2 million. See
id. (citing COAL. FOR JUVENILE JUSTICE, 2001 ANNUAL REPORT: ABANDONED IN THE BACK ROW:
NEW LESSONS IN EDUCATION AND DELINQUENCY PREVENTION ix (2001)).
135 See Kathleen Fitzpatrick, Painting a Different Picture of Education in the Juvenile Detention
Center, ED: HOMEROOM, http://www.ed.gov/blog/2014/12/painting-a-different-picture-ofeducation-in-the-juvenile-detention-center/ (last visited Mar. 14, 2016).
136

Id.
See id.
138 Id.
139 Id.
140 ARNE DUNCAN & ERIC H. HOLDER, GUIDING PRINCIPLES FOR PROVIDING HIGH-QUALITY
EDUCATION IN JUVENILE JUSTICE SECURE CARE SETTINGS iv (2014), available at
http://www2.ed.gov/policy/gen/guid/correctional-education/guiding-principles.pdf
[hereinafter GUIDING PRINCIPLES].
137

141

See id.

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legislation to ensure children receive appropriate education to aid their


eventual reentry into society.142

ANALYSIS
III. Recent Judicial Changes to the Juvenile Justice System Indicate a
Recognition of a Need for Reform
The underlying theme of the Supreme Courts sweeping changes to the
sentencing of juveniles is simple: juveniles are different.143 Because
juveniles have diminished culpability and greater prospects for reform . . .
they are less deserving of the most severe punishments.144 The Miller
court explained this distinction using a combination of what it termed as
common sense and science to reach its conclusion that the differences
between juvenile and adult offenders lied in three areas: (1) children tend
to lack maturity and a sense of responsibility; (2) children are easily
influenced, therefore limiting their ability to extract themselves from
negative influences and environments; and (3) a childs character is still
developing and his or her actions are less likely to show irreconcilable
character flaws than an adult in a similar position.145 These factors all
contributed to the Courts conclusion that the developing nature of the
adolescent brain renders juveniles far more capable of rehabilitation than
adults.146
The Miller Courts rationale closely follows that of Thompson, Roper,
and Graham, and indicates that, at the very least, the Supreme Court has
finally recognized the marked differences between juvenile and adult
offenders.147 While problems certainly remain in the juvenile justice system
itself,148 the simple application of the Courts landmark decisions further
highlights the fundamental problems in the way that the United States still
views juveniles.149 If the principle behind Roper, Graham, and Miller was
that imposition of a States most severe penalties on juvenile offenders
cannot proceed as though they were not children, one would assume that

142

Id.
See Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012); Graham v. Florida, 560 U.S. 48, 66
(2011); Roper v. Simmons, 543 U.S. 551, 56970 (2005).
144 Miller, 132 S. Ct. at 2464 (citing Graham, 560 U.S. at 66).
145 Id. at 2464; see also supra Part I.D.
146 Miller, 132 S. Ct. at 2465; Graham, 560 U.S. at 74.
147 See Miller, 132 S. Ct. at 2464; see also supra Part I.D.
148 See supra Part II; infra Part III.B.
149 See Berkheiser, supra note 64, at 50713 (detailing how the Miller Court, while allowing
for lesser sentences for juvenile offenders, still allowed for overly subjective decisions).
143

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this would be reflected in the application of these decisions.150 The Circuit


Court split following Graham, however, demonstrates that a divide remains
between the judiciarys view of juveniles on paper and its subjective
view on a case-by-case basis.151 This same disparity between practice and
theory can be seen in the operation of juvenile justice facilities as well.152
A. The Court System Must Not Only Abide by the Precedent Set by the
Supreme Courts Reforms, But Must Also Embrace the Motivation
Behind Those Changes
The circuit split centers on the applicability of Grahams bar on life
sentences for non-homicides to cumulative sentencing.153 The Ninth and
Fifth Circuits each correctly applied Graham in 2013, holding that a 254year sentence for a juvenile violated Graham,154 but a forty-year sentence
did not.155 The essence of these two decisions was simple: a 254-year
sentence is equivalent to a life sentence, while a forty-year term was not.156
In Goins v. Smith, the Sixth Circuit failed to recognize the purpose and
reasoning behind the Supreme Courts decision in Graham.157 Narrowly
focusing on technical aspects of the Graham decision, the Sixth Circuits
denial of relief for a sixteen-year-old who had been sentenced to an eightyfour year prison term was grounded in two distinctions: (1) that the
Graham decision did not clearly apply to aggregate sentencing; and (2) even
if Graham were to apply, the fact that the appellant could potentially
qualify for parole at some point in his life meant this sentence did not
equate to a life sentence.158 The court ultimately accepted the district courts
conclusion that Goinss sentence is not technically a life imprisonment
without the possibility of parole, [so] Grahams categorical rule does not
clearly apply to him.159
The Goins court is not wrong.160 By imposing an eighty-four year
sentence, rather than one of life in prison, the trial court technically allowed

150

Miller, 132 S. Ct. at 2466.


See supra Part I.C.
152 See infra Part III.B.
153 See supra Part I.C.
154 Moore v. Biter, 725 F.3d 1184, 1194 (9th Cir. 2013).
155 United States v. Walton, 537 F. Appx 430, 437 (5th Cir. 2013).
156 See supra notes 15354 and accompanying text.
157 See Graham v. Florida, 560 U.S. 48, 82 (2011); Goins v. Smith, 556 F. Appx 434, 43940
(6th Cir. 2012).
158 Goins, 556 F. Appx at 43940.
159 Id. at 439 (citing Goins v. Smith, No. 4:09CV1551, 2012 WL 3023306, at *6 (N.D. Ohio
July 24, 2012)).
151

160

See id. at 43940.

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for the possibility that Goins could one day be released from prison.161 The
trial court, however, expressly stated its intent: It is the intention of this
Court that you should not be released from the penitentiary and the State
of Ohio during your natural [life].162 For all intents and purposes, this
intent would be satisfied, as Goinss potential release date is February 6,
2085when he would be 100 years old, an age that 0.0173% of Americans
live to see.163 While Goins could apply for parole prior to the end of his
sentence, the trial courts stated intent that he die in prison demonstrates
the trial and Circuit courts problematic reasoning in the sentencing
process.164
Goins represents the disconnect between theory and practice in the
sentencing of juveniles, an issue that also pervades juvenile facilities.165 The
goal of the Goins court, from the trial to appellate levels, is clearly one of
punishment.166 The State of Ohio and the Sixth Circuit focused their efforts
not on complying with the underlying motivation of the Supreme Court in
Graham, Miller, and Roper, but instead sought to find a loophole to rectify
its retributive intent with the letter of the law.167 Goins illustrates two
fundamental problems: a disconnect in the application of Supreme Court
precedent, and the Supreme Courts reluctance to address the problem of
juvenile sentencing in a direct, unexploitable manner.168 Until the U.S. court
system addresses these inconsistencies and commits to a universal
application of the Supreme Courts recognition that juveniles are different
than adults and should be treated accordingly, the system will continue to
fail juvenile offenders.169 If the precept of justice is to truly be that
punishment for crime should be graduated and proportioned to [the]

161

Id.
Petition for Writ of Certiorari, Goins v. Smith, 135 S. Ct. 144 (2014) (No. 13-1517), 2014
WL 2796310, at *8.
162

163 Id.;
How
Many
People
Live
to
100?,
GENEALOGYINTIME
MAG.,
http://www.genealogyintime.com/GenealogyResources/Articles/how_many_people_live_to_1
00_page1.html (last visited Mar. 22, 2016) (according to U.S. Census data, there were 53,364
centenarians in 2010, which equals 0.0173% of the population).
164

Goins v. Smith, 556 F. Appx 434, 43940 (6th Cir. 2014).


Compare Miller v. Alabama, 132 S. Ct. 2455, 2465 (2012) (discussing how courts should
treat children differently than adults), with Goins, 556 F. Appx at 436 (quoting the trial courts
intention that Goins spend the rest of his life incarcerated).
165

166 See Goins, 556 F. Appx at 436 (quoting the trial courts intention that Goins spend the
rest of his life incarcerated).
167

See id.
See Berkheiser, supra note 64, at 507 (describing how the Miller Court allowed for
inconsistency on a case-by-case basis).
169 See id. at 517 (describing the Miller Courts failure to categorically address the sentencing
process of juveniles as being fraught with opportunities for prejudice and error).
168

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257

offense, the American justice system must emphatically change its


approach to juveniles to universally seek rehabilitation rather than
retribution.170
B. The Issues Faced by the Juvenile Justice System Extend Well Beyond
Sentencing Procedures, as Juvenile Justice Facilities Fail to Account
for the Developing Nature of the Adolescent Brain
The fact that an entirely separate corrections system exists for juvenile
offenders is an acknowledgment of the distinct differences between
juveniles and adults.171 That acknowledgement stops with the separation of
the two systems.172 From the time a juvenile arrives at a correctional
facility, his life mirrors that of an inmate in an adult prisonfrom the
initial intake process to the day-to-day routine, to the point that [t]he
distinction we make between a juvenile facility . . . and a prison means little
to the kid who enters through a sally port and sleeps in a barren cell,
watched over by uniformed guards . . . and surrounded on all sides by
coils of razor wire.173
The juvenile justice system is currently a blend between two theories,
one focusing on treatment, the other on justice.174 Many practices within
correctional facilities, however, lean heavily toward the justice model.175
One such practice is solitary confinement.176 Solitary confinement is used as
a security measure within juvenile justice facilities, a response to the
culture of violence that emanates through most facilities.177 Housing the
victimized, the victimizer, the vulnerable, the suicidal, or the simply
defiant, the practice of solitary confinement allows juvenile facilities to
maintain a level of order.178 However, solitary confinement flies directly in
the face of any notion of rehabilitation for incarcerated youth.179 Spending
as much as twenty-three hours alone in a cell each day, with meals and
education (sometimes worksheets and a crayon) being passed through a

170 See Roper v. Simmons, 543 U.S. 551, 560 (2005) (quoting Atkins v. Virginia, 536 U.S. 304,
311 (2002)).
171

See BERNSTEIN, supra note 15, at 22.


See id.; see also supra Part II.
173 See BERNSTEIN, supra note 15, at 2224, 29.
174 SIMONSEN, supra note 23, at 199.
175 See BERNSTEIN, supra note 15, at 2627; SIMONSEN, supra note 23, at 199200.
176 See BERNSTEIN, supra note 15, at 27.
177 See id.
178 See id.
179 See id.
172

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slot in the door, any goal of rehabilitation is sacrificed as a crowd control


measure.180
The practice of solitary confinement, like many extreme measures,
certainly serves a purpose.181 The issue, however, is that it is wildly
overused.182 The American Civil Liberties Union released a report in 2014
detailing the overuse of isolation, noting that many facilities extend
isolation from the short amount of time necessary to defuse problems to
lengthy stays, which can lead to significant psychological, physical, and
developmental harm.183 Considering the science indicating that the
adolescent brain is in its formative stage, such practices can further damage
incarcerated youth, rather than rehabilitate them in an effort to successfully
reintroduce them into society.184
Solitary confinement is an example of the blend between the adult and
juvenile correctional systems, as isolation is necessary for both safety and
deterrence in adult prisons.185 Its extensive use in juvenile facilities,
however, demonstrates how the day-to-day function of the juvenile justice
system often fails to apply a rehabilitation approach.186 As a result, the
opportunity for reform and growth while incarcerated is squandered, and
many juveniles maintain the behaviors that got them sent to these facilities
in the first place.187 This lack of growth during a juveniles formative years
while housed in a juvenile facility likely contributes to the high recidivism
rates seen in incarcerated youth.188 To combat the recidivism problem, the
education systems within juvenile justice facilities must be revamped to
offer incarcerated youth an opportunity to gain valuable skillsin both an
academic and vocational senseto advance hopes of successfully rejoining
society upon release.189

180

See id.
See id.
182 AM. CIVIL LIBERTIES UNION, ALONE & AFRAID: CHILDREN HELD IN SOLITARY
CONFINEMENT AND ISOLATION IN JUVENILE DETENTION AND CORRECTIONAL FACILITIES 67
(2014), available at https://www.aclu.org/files/assets/Alone%20and%20Afraid%20COMPLETE
181

%20FINAL.pdf.
183 Id. at 2.
184 See id. at 3; see also supra Part I.D.
185 See Kenneth M. Cole, Constitutional Status of Solitary Confinement, 57 CORNELL L. REV.
476, 476 (1972).
186 See SIMONSEN, supra note 23, at 199200 (describing the treatment and justice theories of
juvenile detention).
187

See BERNSTEIN, supra note 15, at 7.


See JUVENILE DETENTION, supra note 13.
189 See Davis et al., supra note 11, at iii.
188

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IV. With the Supreme Courts Guarantee that Nearly All Juvenile
Offenders Will Rejoin Society, the Need for Rehabilitation Is
Stronger Than Ever
While there remains a disconnect between the Supreme Courts
recognition of the differences between juvenile and adult offenders and the
function of the juvenile justice system, the consequences of the Courts
reform cannot be ignored.190 It remains possible for a juvenile offender to
be incarcerated for life, but the reality is that the vast majority of juvenile
offenders will rejoin society at some point.191
As a result, the time is now for the juvenile justice system to bridge the
gap between rhetoric and application that has plagued the system since its
inception in the 1800s.192 The Houses of Refuge of New York City, which
marked the beginning of the American juvenile justice system, sought to
protect children from the realities of adult prison and educate, reform, and
train them to reenter society.193 From the Houses of Refuge to the present
systemwhich continues to operate under the guise of rehabilitationthe
system has operated far more as an adult prison for children.194
The Supreme Courts decisions in Roper, Graham, and Miller all follow a
common recognition that children and adults are fundamentally
different.195 It is time for the system to recognize that as well.196 The
similarities between the adult systems model of punishmentsolitary
confinement, for examplemust be reworked with a model that focuses on
rehabilitating juvenile offenders and successfully assimilating them back
into society.197
Financial concerns have limited rehabilitative efforts of the juvenile
justice system, compromising education, therapy, and the length of stays.198
Many have pointed to these budgetary constraints as a root cause of the
high recidivism rates among juveniles, which demonstrates the
shortsightedness plaguing the system.199 Each person that lives a life of
190

See supra Part III.


See Miller v. Alabama, 132 S. Ct. 2455, 2476 (2012) (barring mandatory life sentences
without the possibility of parole for juvenile offenders).
191

192

See supra Part I.A.


BERNSTEIN, supra note 15, at 38.
194 See id. at 2223.
195 See supra Part I.B.
196 See BERNSTEIN, supra note 15, at 2223 (outlining the similarities between juvenile
facilities and adult prisons).
197 SIMONSEN, supra note 23, at 199200 (detailing the differences between the treatment and
justice prison models).
193

198
199

Id.
See id.

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crime is estimated to cost taxpayers $2 million over the course of his or


her life,200 and the $52 billion spent by states each year on corrections is
quadruple that of twenty years ago.201 Studies have indicated that prison
education programs dramatically reduce crime, and an investment of $1
million in prison education prevents roughly 600 future crimeswhile that
same investment in incarceration will prevent roughly 350 crimes.202 With
recidivism rates hovering around 75% for both juvenile and adult
offenders, an obvious solution to the crippling corrections budgets across
the United States is to take strides to limit recidivism.203 As a result, the
long-term savings for each juvenile offender that is successfully
rehabilitated would offset the financial burden that would result from an
increased focus on rehabilitation.204 The time is now for the juvenile justice
system to finally operate in the way it was intended, benefitting both the
individual, and society at large, with a renewed focus on rehabilitation
centered on education.205
V. Juvenile Justice Facilities Should Serve as an Intervention
Opportunity to Rehabilitate Juveniles and Prepare Them for Success
in Society Through Aggressive Academic and Vocational Education
Programs
With few exceptions, the education provided in juvenile justice
facilities is nothing more than a formality.206 Statutes in most states place
daily minimum requirements of six hours in the classroom, but the quality
of that education has been questioned by many.207 Youth incarceration has
been seen as an interruption of their education, which impacts both their
education level and their future employment prospects.208 With a shortage
in well-trained teachersparticularly in the form of special educators
and basic classroom materials, the education in juvenile facilities regularly
200

Twomey, supra note 14, at 77374.


Trymaine Lee, Recidivism Hard to Shake for Ex-Offenders Returning Home to Dim Prospects,
HUFFINGTON POST (June 9, 2012, 11:35 AM), http://www.huffingtonpost.com/2012/06/09/
recidivism-harlem-convicts_n_1578935.html.
202 AUDREY BAZOS & JESSICA HAUSMAN, UCLA SCH. OF PUB. POLICY AND SOC. RESEARCH,
CORRECTIONAL EDUCATION AS A CRIME CONTROL PROGRAM 1 (2004), available at
http://www.ceanational.org/PDFs/ed-as-crime-control.pdf.
201

203

See JUVENILE DETENTION, supra note 13; Bostic, supra note 110.
See supra notes 198203 and accompanying text.
205 See BERNSTEIN, supra note 15, at 2223 (detailing how juvenile facilities mirror adult
prisons); SIMONSEN, supra note 23, at 199200 (discussing the financial constraints that limit
rehabilitation efforts).
204

206

See Fritz & Brown, supra note 127.


NADEL-HAYES & MACALLAIR, supra note 133, at 1112.
208 GUIDING PRINCIPLES, supra note 140, at 1.
207

2016

Juvenile Justice Reform

261

fails to meet statutory requirements.209 This failure in the classroom has


been linked to recidivism among youths, as many re-enter society with a
lack of the skills necessary to succeed.210 On the other hand, juveniles that
have received quality education while incarcerated have been shown to be
both more likely to return to school upon release and to eventually obtain
employment.211 In light of the high cost of recidivism (a $2 million taxpayer
price-tag for every life of crime), the motivations for improving
education within juvenile justice facilities go beyond the individual.212
Considering this, quality education certainly appears to be an area for the
juvenile justice system to focus its efforts on, serving both the individual
and society at large.213
A. The Juvenile Justice System Must Stop Treating Education as
Merely a Requirement and Embrace It as a Means to Both
Rehabilitate Incarcerated Youth and Improve Society
There is no magic formula to create quality education, as evidenced by
the carousel of standardized tests and program reform seen throughout the
public school system.214 With the already-existing pitfalls in the education
system,215 addressing the issues plaguing education in juvenile facilities
will be even more difficult.216 However, a successful model appears to have
emerged from examples like the Northern Virginia Juvenile Detention
Center (the Center), sparking Attorney General Eric Holder and
Education Secretary Arne Duncan to release a report intended to spark
change across the nations juvenile facilities.217
With a wing devoted solely to education, the Center should be a model
for juvenile facilities across the country.218 The program focuses on projectbased learning, with small classrooms, special-education programs,
English-as-a-second-language teachers, reading specialists, and a character-

209

See Twomey, supra note 14, at 77172.


Davis et al., supra note 11, at iii.
211 Twomey, supra note 14, at 773.
212 Id. (citing COAL. FOR JUVENILE JUSTICE, 2001 ANNUAL REPORT: ABANDONED IN THE BACK
ROW: NEW LESSONS IN EDUCATION AND DELINQUENCY PREVENTION ix (2001)).
210

213

Id. (citing COAL. FOR JUVENILE JUSTICE, 2001 ANNUAL REPORT: ABANDONED IN THE BACK
ROW: NEW LESSONS IN EDUCATION AND DELINQUENCY PREVENTION ix (2001)).
214 See, e.g., Kala Kachmar, Common Cores Biggest Pitfall, MYCENTRALJERSEY.COM (Mar. 22,
2015, 7:12 PM), http://www.mycentraljersey.com/story/news/local/middlesex-county/2015/02/
15/common-cores-biggest-pitfall/23455787/.
215 See, e.g., id.
216 See Letter from Arne Duncan and Eric H. Holder, Jr., supra note 124.
217 GUIDING PRINCIPLES, supra note 140, at iv.
218 See Fitzpatrick, supra note 135.

262

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v. 50 | 237

education program.219 Students from the Center have told teachers that
they would have attended their former schools more regularly if it had
been more like this.220 Kathleen Fitzpatrick, a teacher at the Center, has
seen the unique program help remove students negative stigmas toward
school.221 Because of the program, students have received high school
diplomas while incarcerated and even college scholarships upon their
release.222 The key difference in the Northern Virginia Juvenile Detention
Center, it appears, is the passion among the educators and the willingness
to break away from the norm.223 In setting high expectations for their
studentsand treating them as students rather than prisonersthe Center
has been able to successfully prepare its students for success upon their
release.224
Following a similar structure to what is employed at the Northern
Virginia Juvenile Detention Center, Holder and Duncan released principles
for providing quality education within juvenile justice facilities.225 Key
among the five suggested principles226 are the recruitment and retaining of
well-qualified education staff, appropriate funding, and an environment
that supports all kinds of students, including non-native English speakers
and those with learning disabilities.227
1.

The American Education System Has Long Emphasized


the Positive Impact of Properly-Qualified Teachers, a
Focus that Must be Reflected Within the Juvenile Justice
System

It should go without saying that one of the most rudimentary needs of


any classroom is a well-qualified teacher.228 This was reflected by Congress
in the No Child Left Behind Act of 2001, which required that all teachers of
core academic subjects meet three criteria: (1) a minimum of a bachelors
degree in the subject taught; (2) state teacher certification; and (3) a
demonstration of knowledge in the subject being taught.229

219 Northern Virginia Juvenile Detention Center, ALEXANDRIA CITY PUBLIC SCHOOLS,
http://www.acps.k12.va.us/profiles/nvjdc.php (last visited Mar. 18, 2016).
220

Fitzpatrick, supra note 135.


Id.
222 Id.
223 Id.
224 Id.
225 GUIDING PRINCIPLES, supra note 140, at iv.
226 See supra note 142 and accompanying text.
227 See GUIDING PRINCIPLES, supra note 140, at iv.
228 See id.
229 Highly Qualified Teachers for Every Child, U.S. DEPT. OF EDUC. (Aug. 2006),
221

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263

Such standards did not reach juvenile facilities.230 Not only are many
teachers not instructed on how to effectively teach in correctional facilities,
but teachers often do not have advanced degrees and do not need to meet
general qualification requirements.231 A 2007 audit of a Texas juvenile
justice center serves as an example of many of these problems, where
computerized courses served as the basis for classes, teachers were found
to be teaching courses they were not certified to teach, and teachers in the
security unit provided children with no instruction and only
worksheets.232
In order for education to serve as a means to rehabilitate incarcerated
youth, changes must begin by requiring teachers to meet fundamental
certification requirements.233 The need for quality educators is even more
important within juvenile facilities, as incarcerated youth tend to stand
below their peers academically.234 While there is much work that must be
done, the first and most important step is to hold teachers within juvenile
facilities to the same standards as those in public schools.235 The significant
impact that quality teachers can have on incarcerated youth has been seen
in the Northern Virginia Juvenile Detention Center,236 and in order for any
reform to the education program within juvenile facilities to be successful,
the changes must begin with the teachers.237
2.

For Education Programs in Juvenile Detention Centers to


Be Successfully Reformed, They Must Receive Proper
Funding

Money matters in education.238 Access to proper funding can often


spell the difference between a failing school community and one that
provides a safe, supportive, and engaging educational environment with

http://www2.ed.gov/nclb/methods/teachers/stateplanfacts.html; see 20 U.S.C. 7801 (2012).


230

See Twomey, supra note 14, at 77172.


Id.
232 DIMITRIA D. POPE & SYLVIA MARTINEZ, TEX. YOUTH COMM'N, COKE COUNTY JUVENILE
JUSTICE CENTER AUDIT 10 (2007), available at http://www.dallasnews.com/sharedcontent/dws/
231

img/10-07/1006tyccokeaudit.pdf.
233 See supra notes 21013 and accompanying text.
234 GUIDING PRINCIPLES, supra note 140, at 14.
235 Id. at 15.
236 Fitzpatrick, supra note 135.
237 See GUIDING PRINCIPLES, supra note 140, at 15.
238 BRUCE D. BAKER, THE ALBERT SHANKER INST., REVISITING THE AGE-OLD QUESTION: DOES
MONEY
MATTER
IN
EDUCATION?
iv
(2012),
available
at
http://www.shankerinstitute.org/resource/does-money-matter.

264

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v. 50 | 237

caring teaching staff.239 Studies have indicated that spending per student
has a positive correlation with improved performance from students, as
increased resources can lead to a reduction in a schools teacher-to-student
ratio and provide higher salaries for teachers.240
The current financial shortfall for education programs in juvenile
justice facilities has created competition for the limited funds, often leaving
certain programs underfunded.241 According to Duncan and Holder, this
competition is often the result of disorganization in the administration of a
juvenile facility, as education funding is combined from federal, state, and
local agencies.242 This makes budget development difficult, which can even
result in funds going unused.243 To help offset these issues and allow for
more successful education programs at juvenile facilities, measures must
be taken to both ensure appropriate funding is available and that all
funding is being utilized appropriately and efficiently.244
3.

With a High Proportion of Special Education Students in


Juvenile Facilities, Effective Reform Must Revamp Special
Education Along With General Education Programs

The percentage of the population in juvenile facilities that has received


special education accommodations in the past is significantly higher than
in public schools.245 In fact, a 2010 survey indicated that the rate of youth
with diagnosed learning disabilities is six times higher in juvenile justice
facilities than the general population.246 Under the Individuals with
Disabilities Education Act, all students are entitled to special education
services.247 In a common theme of the education system within juvenile

239

GUIDING PRINCIPLES, supra note 140, at 13.


See BAKER, supra note 238, at iv. Increased resources for teacher salaries is one potential
way to incentivize more qualified teachers to teach in juvenile facilities. See supra Part V.A.1.
241 See GUIDING PRINCIPLES, supra note 140, at 13.
242 Id.
243 See id.
244 See id. at 14.
245 Special Education in Correctional Facilities, THE NATL CENTER ON EDUC., DISABILITY AND
JUV. JUST., http://www.edjj.org/Publications/pub05_01_00.html (last visited Mar. 23, 2016).
More than one in every three youths in juvenile facilities have received special education
services prior to incarceration. Id.
246 Sarah Butrymowicz & Jackie Mader, Pipeline to Prison: How the Juvenile Justice System
Fails
Special
Education
Students,
THE
HECHINGER
REP.
(Oct.
26,
2014),
http://hechingerreport.org/pipeline-prison-juvenile-justice-system-fails-special-educationstudents/.
247 See Individuals with Disabilities Education Act, 20 U.S.C. 140009 (2012);
Butrymowitz & Mader, supra note 246.
240

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detention centers, special education requirements are often not met.248 A


2004 study of an Arizona juvenile corrections facility revealed just such a
downfall, as that facility provided just three faculty members for the eighty
children with special education needs.249 Similarly, a sixteen-year-old
special education student who was incarcerated in Mississippi not only did
not receive special education, but also never stepped foot in a classroom
while incarcerated.250
Special education is defined as specially designed instruction . . . to
meet the unique needs of a child with a disability,251 which requires
teachers to have been specifically trained in providing special education
services.252 Just as general education teachers have largely been seen to be
under qualified, many special education teachers in juvenile facilities do
not even have training in special education.253 In order to have any hope of
rehabilitating students and allowing for them to successfully assimilate
back into society, sufficient education must be provided for all studentsa
need that is only enhanced by the high percentage of incarcerated youth
requiring special education.254 Following Duncans and Holders
recommendation to provide a safe, healthy, facility-wide climate that
prioritizes education for all students, a particular emphasis must be
placed on establishing legitimate special education programs with properly
trained teachers.255
B. In Addition to Academic Training, Juvenile Justice Systems Should
Provide Vocational Training to Assist Juveniles in Securing
Employment Upon Their Release
The theory behind vocational and technical schools in the United States
is simple: prepare students to graduate high school and potentially pursue
future education, and ensure those students have other career options
should they choose not to pursue higher education.256 Vocational high

248 See Special Education in Correctional Facilities, supra note 245 (describing how a lack of
standards and regulations leads to inadequate special education in juvenile detention centers).
249

Letter from R. Alexander Acosta, Assistant Attorney Gen., to the Honorable Janet
Napolitano, Governor of Ariz. 23 (Jan. 23, 2004), available at http://www.justice.gov/sites/
default/files/crt/legacy/2011/04/13/ariz_findings.pdf.
250 Butrymowicz & Mader, supra note 246.
251 20 U.S.C. 1401(29) (2012).
252 20 U.S.C. 1401(10)(A)(D) (2012).
253 See Twomey, supra note 14, at 77172.
254 See supra notes 22936 and accompanying text.
255 See GUIDING PRINCIPLES, supra note 140, at 8.
256 Allie Bidwell, Vocational High Schools: Career Path or Kiss of Death?, U.S. NEWS & WORLD
REP. (May 2, 2014, 12:01 AM), http://www.usnews.com/news/articles/2014/05/02/the-return-of-

266

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schools provide students with practical, hands-on training in a variety of


fields, ranging from carpentry or automotive technology to cosmetology or
dental assistance.257 Students still receive a traditional academic
educationin fact, at least 75% of eleventh grade students at a Dayton,
Ohio vocational school scored proficient in reading, writing, math, and
social studies on the states graduation test, scoring higher than the state
average.258 On top of that traditional education, however, each student has
the opportunity to gain certification to work in a specific industry right out
of high school.259 Some consider the current American education model a
disservice because it pushes all students toward college when there are
many good-paying jobs available today that, quite candidly, a four-year
bachelor of arts degree does not prepare them for.260
For the at-risk group of incarcerated youth, the failures of the
education system are even more of a disservice.261 While it is certainly
possible for a once-incarcerated juvenile to follow the new American norm
and earn a college degree, this remains a population that is at a significant
disadvantage.262 According to a study by the Department of Education,
80% of college students who ranked in the bottom quarter of their high
school classes would never earn an associates degree, much less a
bachelors degree.263 Approximately three in four incarcerated juveniles
have failed one or more classes prior to their incarceration, and up to 50%
have been held back by at least one grade.264 Even before entering a
juvenile facility, many of these children would have been unlikely to follow
the bachelors degree path.265

vocational-high-schools-more-options-or-the-kiss-of-death.
257

Id.
Id.
259 Id.
260 Id.; see also We Got This: Youth Employment, OPPORTUNITY NATION: THE SHARED PLAN TO
RESTORE OPPORTUNITY, http://opportunitynation.org/call-to-action-youth-employment/ (last
visited Mar. 23, 2016) (detailing a plan to place American youth in positions to succeed in the
work force).
258

261

See supra Part V.A.


See supra note 125 and accompanying text.
263 Jacques
Steinberg, Plan B: Skip College, N.Y. TIMES (May 15, 2010),
http://www.nytimes.com/2010/05/16/weekinreview/16steinberg.html. Note that 80% of those
who choose to attend college from the bottom quarter of their high school class will never earn
an associates or bachelors degree. Id. The actual percentage of students from the lowest
quartile of their class to never earn such a degree, when considering those that never pursue
one, is almost certainly much higher. See id.
264 THE RIGHT TO EDUCATION IN THE JUVENILE AND CRIMINAL JUSTICE SYSTEMS IN THE
UNITED STATES, supra note 12, at 6.
262

265

See supra notes 26364 and accompanying text.

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Juvenile Justice Reform

267

That is not to say that those individuals without a collegiate education


will struggle to secure gainful employmentaccording to the Bureau of
Labor Statistics, only two of the projected top-ten growing job categories
between 2010 and 2020 will require college degrees.266 Moreover, studies
indicate that a majority of youth with learning disabilities will not spend
four years in college, and few students with learning disabilities pursue
any training after high school.267
Vocational training can serve as an effective alternative to traditional
education, particularly for incarcerated youth who have traditionally
struggled in school and have high rates of learning disabilities.268 However,
a 2011 study indicated that only 32% of juvenile facilities offer any kind of
vocational or technical education.269 Among the perceived roots of the
United States recidivism problem is a lack of job training and an inability
to obtain employment, both issues that can clearly push one back to a life
of crime to satisfy daily needs.270
One way to address the recidivism problem for juveniles is to
supplement traditional education with vocational and technical training.271
Many youths do not return to school after being released from juvenile
correctional facilities; of those who do, many will drop out, often resulting
in a return to a life of crime.272 To help combat that reality, the juvenile
justice system must expand its educational priorities to include vocational
and technical training.273 With a growing demand for skilled workers in the
United States,274 technical training would provide incarcerated youth with
a legitimate alternative to traditional education, increase their job prospects
upon release, and reduce recidivism rates.275

266

Steinberg, supra note 263.


Mary J. Tomblin & Kathryn A. Haring, Vocational Training For Students With Learning
Disabilities: A Qualitative Investigation, 51 J. OF VOCATIONAL EDUC. & TRAINING 357, 358 (1999).
268 See supra text accompanying notes 24656.
269 N.W. READ ET AL., FACTSHEET: JUVENILE JUSTICE EDUCATION, NATL EVALUATION AND
TECHNICAL ASSISTANCE CENTER FOR THE EDUC. OF CHILD. AND YOUTH WHO ARE NEGLECTED,
DELINQUENT,
OR
AT
RISK
(Jan.
2011),
available
at
http://www.neglecteddelinquent.org/sites/default/files/NDFactSheet.pdf.
270 Lee, supra note 201.
271 See READ ET AL., supra note 269, at 5.
272 See GUIDING PRINCIPLES, supra note 140, at 1; Lee, supra note 201.
273 See READ ET AL., supra note 269, at 5.
274 See Steinberg, supra note 263.
275 See Lee, supra note 201 (discussing how poor job prospects upon release contribute to
recidivism).
267

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CONCLUSION
Kids are different. This fact is a consensus among scientists and has
been recognized by the juvenile justice system from its inception and, more
recently, by the Supreme Court. While the Courts decisions in Roper,
Graham, and Miller are a positive step in further separating the juvenile and
adult justice systems, the application of those rulings and the function of
the juvenile justice system suggest there is still work to be done. The gap
between rhetoric and practice in the juvenile justice system has existed
since its inception, and the time is now to aggressively reform the system
to focus on rehabilitation. Centered on an overhaul of the educational
programs in juvenile facilities, this reform should capitalize on the
malleability of the teenage brain. With effective traditional education
supplanted with vocational and technical programs, the juvenile justice
system can effectively reduce recidivism rates by preparing incarcerated
youth to rejoin society. Many will argue that some juvenile offenders guarantee that they will one day be released, is it not societys
responsibility to try?

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