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62 Minn. L. Rev. 515 (1977-1978)
Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions

handle is hein.journals/mnlr62 and id is 529 raw text is: Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions Barry C. Feld* I. INTRODUCTION The adult criminal justice system presumes responsible actors who make blameworthy choices and punishes those actors in propor- tion to culpability and the gravity of the offense.' By contrast, the juvenile justice system is committed to a rehabilitative ideal and individualized treatment of the offender.2 At least in theory, the best * Professor of Law, University of Minnesota. I am indebted to my colleagues Richard Frase, Robert Levy, and David Ward for helpful comments and suggestions in preparing this article. I received exceptional research assistance from Jack S. Levey (University of Minnesota Law School, Class of 1978) and Debra Polinsky (University of Minnesota Law School, Class of 1979). This research was made possible by a generous grant from Mrs. Elsie L. Fesler, who funded the John K. Fesler Memorial Fellowship in memory of her late husband. 1. See generally H.L.A. HART, PuNIsHMENT AND RESPONSIBMrry (1968); N. MOR- RIS, THE FUTURE OF IMPRISONMENT (1974); H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION (1968); Hart, The Aims of the Criminal Law, 23 LAw & CoNTEMP. PROB. 401 (1958). The criminal law jurisprudence reflected in the works of Hart, Morris, and Packer, upon which this Article draws heavily, accepts culpability as a limiting factor on the imposition of penalties and utility as a justification for the deliberate infliction of punishment on blameworthy criminal actors. See N. MORRIS, supra at 58-84; H. PACKER, supra at 62-70. Rehabilitation is rejected as a justification for penal interven- tion because social change cannot be achieved consistently enough to warrant granting administrators the extensive discretion associated with therapeutic justice and be- cause danger for abuse of discretion exists where administrators are permitted to deal with offenders differently on the basis of assumed, but empirically undemonstrated, differences. See generally N. MORRIS, supra at 14-20; notes 50-62 infra and accompany- ing text. The rejection of rehabilitation as a purpose for intervention does not, of course, preclude efforts at voluntary offender change. Incapacitation is also rejected as a justification for penal intervention because predictions of future conduct are unreliable and may lead to overincarceration. See notes 79-87 infra and accompanying text. 2. See, e.g., Paulsen, Kent v. United States: The Constitutional Context of Juve- nile Cases, 1966 Sup. CT. REv. 167, 169: [Tihe reformers generally rejected deterrence and retribution as adequate notions to justify criminal sanctions. A criminal law based on such principles had failed to suppress crime and was cruel to individuals because of its failure to individualize treatment. Certainly such a harsh, poorly conceived system should no longer be applied to children. . . . The rules of criminal responsibility, based on what seemed to be an outmoded conception of free will, were thought unsuited to the progress appropriate to the new century,

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