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11 Fed. Sent'g Rep. 260 (1998-1999)
The 1990s Assault on Juvenile Justice: Notes from an Ideological Battleground

handle is hein.journals/fedsen11 and id is 262 raw text is: The 1990s Assault on Juvenile Justice:
Notes from an Ideological Battleground

The i99os have witnessed the broadest and most sus-
tained legislative crackdown ever on serious offenses
committed by youth within the jurisdictional ages of
American Juvenile Courts. More than 90% of the states
in the United States have passed new laws facilitating
FRAN KLI N E.       transfer of youth to criminal courts, reducing privacy
Z I MR IN G         protections in juvenile court or increasing the punish-
ment power of special branches of the juvenile court.
William G. Simon     Republican majorities in the federal congress have per-
Professor of Law and  sistenly proposed financial aid inducements for the
Director of the Earl  states to increase punishments for adolescent
Warren Legal Institute, offenders. The sustained attention to adolescent crime
University of Califor.  is also giving the minuscule federal court juvenile jus-
nia, Berkeley       tice caseload a higher profile than ever before. With
about 200 cases per year in the federal courts, or about
i for every 3,5oo delinquency cases in the states, the
federal juvenile justice caseload has nonetheless been
proposed as a subject for legislatively required sentenc-
ing guidelines to be issued by the United States Sen-
tencing Commission. Evidently no caseload is too small
to play a role in the epic legislative battle that is being
waged against youth crime in the 199os.
But why the 199os? The last time juvenile crime
was a central media and public concern was 1975,
when the population of 13-17 year olds reached its all
time peak in the United States. While a few states made
large legal changes in the late 197os, the movement to
crack down lasted about half as long as the current leg-
islative open season and was never as broad as in the
The standard explanation for the youth crime scare
of the 199os has been a public and legislative reaction
to escalating rates of serious youth violence. Between
i98o and 1993 adolescent arrests for homicide more
than doubled and this increase provoked projections of
further increases in future years. Terms like blood-
bath, coming storm of juvenile violence and juve-
nile super-predator gained currency in the discussion
of youth crimes within the legislative process.
But there are substantial flaws in the theory that
increasing rates of youth violence were the driving force
behind the decade-long counter-reformation in juvenile
justice. For starters, the youth homicide rate peaked in
1993 and has been dropping fast ever since then with
no parallel relaxation in the assault on the juvenile jus-
tice system. And the increases in homicides were con-
centrated in very large cities; many of the jurisdictions
that passed new laws never had a juvenile crime wave
to call their own. By 1996 and 1997, crime rates and

victimization levels were down but the legislative pres-
sure remained extraordinary.
The new threat supporting get tough legislation
was a future expansion expected of the youth popula-
tion (about 15% in 15 years) that citizens were told
would bring with it a coming storm of juvenile vio-
lence, in the oft repeated phrase of Representative Bill
McCullum of Florida. In the middle of the largest sus-
tained decline in violent crime in 30 years, these predic-
tions of a coming storm suggest that the holy war
about juvenile justice was neither wholly nor mainly a
reaction to levels of crime in the streets. When the
youth crime increases of the late i98os fell back, the
hard line advocates simply created a projected crime
scare in the future. With this kind of resourcefulness,
the campaign to criminalize the juvenile justice system
never needed a body count.
I would like to suggest that the focus on juvenile
justice in the i99os can best be understood as an inte-
gral part of the ideological battle about imprisonment
and official attitudes toward crime. In the two decades
prior to the early i99os, penal policy had been
effectively reoriented to hard line objectives in the
United States, and this shift was more than rhetorical.
From its low point in 1973, the United States prison
population has risen without interruption for more
than a quarter century. American prisons held more
than four times as many inmates in 1997 as in 1973,
and this expansion was an explicit objective of the crim-
inal justice policy in force in almost all the states.
It turns out that the juvenile courts were a hold-out
against the law-and-order reorientation occurring else-
where in the American criminal justice system, a con-
trast in both rhetoric and behavior to the spiral of
increased incarceration. To be sure, secure confinement
in both pre-trial detention and longer term reformato-
ries had always been an important element of juvenile
justice in the United States, and rates of confinement
for older juveniles were quite close to those for young
adults in the early 1970s. But the trend in juvenile jus-
tice over the last two decades is a sharp contrast to that
of the criminal courts. Figure i contrasts trends in
confinement of older juveniles with confinement rates
for young adults between 1971 and 1991.
While the confinement rate in ages 18 to 24 dou-
bled, the trend for juveniles 14 to 17 years of age was flat
over the same period. In this important sense, the juve-
nile court was the only major hold-out in the law-and-
order revolution in the United States. However close



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