Juveniles in the Adult System

Waiver of youths to criminal courts for sentencing as adults implicates legal and cultural understandings of juveniles' criminal responsibility. Waiver laws that exclude capital offenses from juvenile court jurisdiction expose some youths to the possibility of execution for offenses they committed as juveniles. Imposing sentences of "life without parole" on waived youths for crimes they committed at thirteen or fourteen years of age, and executing them for crimes they committed at sixteen or seventeen years of age, challenges the social construction of adolescence and the idea that juveniles are less criminally responsible than adults.

Both historically and at present, some states have executed people for crimes committed while they were children. States have executed nearly three hundred people for the crimes they committed as chronological juveniles, and courts currently impose about 2 percent of death penalties on minors. Since the reinitiation of capital punishment in 1973, states have executed nine offenders for crimes they committed as juveniles, six since 1990. Judges have pronounced death sentences on 140 offenders for crimes committed as juveniles, or 2.6 percent of all capital sentences.

The Supreme Court considered the culpability of young offenders in the context of death penalty litigation on several occasions in the 1980s. In Thompson v. Oklahoma (1988), the Court pondered whether a state violated the Eighth Amendment prohibition on "cruel and unusual punishments" by executing an offender for a heinous murder he committed when he was fifteen years old. A plurality of the Court overturned the capital sentence and concluded that "a young person is not capable of acting with the degree of culpability [as an adult] that can justify the ultimate penalty." The following year in Stanford v. Kentucky (1989), a different plurality of the Court upheld the death penalty for murders committed by juveniles aged sixteen or seventeen years at the time of their offense. Of the thirty-eight states and the federal government that authorize the death penalty, twenty-one allow the state to execute a youth for crimes committed at age sixteen and an additional four permit executions for crimes committed at age seventeen.

The Supreme Court gives even greater constitutional deference to states' sentencing policy decisions outside of the context of capital punishment, upholds mandatory life sentences even for drug crimes, and eschews proportionality analyses. The Court's deference to states' criminal policy judgments grants state legislatures virtually unreviewable authority to prescribe penalties for crimes. The Court's reluctance to limit states' criminal sentencing authority has special significance for juveniles tried as adults. "Sound-bites" of contemporary politics—"adult crime, adult time," or "old enough to do the crime, old enough to do the time"—convey current youth sentencing policy. Many of the most serious crimes for which criminal courts convict youths carry substantial sentences, mandatory minima, or even life without parole. Exclusion statutes without minimum age restrictions expose even very young offenders to such harsh penalties. The Federal Sentencing Guidelines explicitly reject "youthfulness" as a justification to mitigate sentences outside of the guidelines range, although several states' sentencing laws recognize "youthfulness" as a mitigating factor. However, statutes that include youthfulness among a number of aggravating-mitigating factors simply treat it as one element to weigh with other factors when sentencing. In most states, whether a judge treats youthfulness as a mitigating factor rests within her sound discretion. Appellate courts regularly affirm mandatory sentences of life without parole for thirteen-year-old juveniles convicted as adults.

As a result of recent changes in waiver laws, criminal courts sentence increasing numbers of youths to adult correctional facilities. Unfortunately, we lack reliable data on the number of imprisoned juveniles because most states do not classify young inmates on the basis of the process that brought them to prison. Many youths who committed their crimes as chronological juveniles may be adults by the time courts have waived, convicted, and sentenced them to prison. Because of the recency of many changes in waiver statutes, correctional administrators have not yet fully experienced the population or programming implications of these policy changes.

A 1991 survey of state correctional administrators reported that convicts aged seventeen or younger comprised less than one percent of 712,000 prisoners, but did not distinguish between waived or excluded youths and those in states in which juvenile court jurisdiction ended at fifteen or sixteen years of age. Another survey reported that offenders younger than eighteen years of age comprised about 2 percent of new commitments to prisons, and that about three-quarters of those youths were seventeen at the time of their confinement. In 1993, criminal courts sentenced about 5,200 youths aged seventeen or younger to adult prisons.

Recall that criminal courts sentenced juveniles waived for property and for violent crimes differently as adults, and that recent waiver legislative amendments increasingly target violent youths. As a result, among persons sentenced to prison, a substantially larger proportion of younger offenders are committed for violent crimes than is true for adult prison commitments. For example, of youths under age eighteen sentenced to prison, 50 percent had been convicted of violent crimes, compared with 29 percent of adults admitted to prison. The percentages of youths committed to prison who had been convicted of violent crimes exceeded the proportions for sentenced adults for murder, robbery, and assault. Because of the disparities in rates of violent offending by race, criminal courts sentenced a majority of black youths (54 percent) to prison for violent offenses and a majority of white youths (57 percent) for property crimes. Because of the differences in sentence lengths imposed for violent and property crimes, the racial disparities in prison inmate populations will cumulate.

The infusion of juvenile offenders poses a challenge to corrections officials to develop age-appropriate programs and conditions of confinement for younger inmates. Correctional administrators anticipate increased pressure on already overburdened prison systems. Subject to variations in state laws and available facilities, correctional options for handling juveniles include straight adult incarceration with minimal differentiation between juveniles and adults other than routine inmate classification; graduated incarceration in which youths begin their sentences in a juvenile or separate adult facility and then serve the remainder of their sentence in the adult facility; or age-segregated incarceration either in separate facilities within the prison or in separate youth facilities for younger adults. Analyses of correctional practices in the mid-1990s reported that nearly all states confine juveniles sentenced as adults in adult correctional facilities either with younger adult offenders or in the general population if the juvenile is of a certain age, for example, sixteen. In 1994, thirty-six states dispersed young inmates with adult inmates, nine states housed younger inmates with those aged eighteen to twenty-one, and only six states segregated younger inmates from older prisoners either in juvenile training schools until they reached the age of majority or in age-segregated units within an adult prison. Prison officials generally regard juveniles convicted in criminal courts as adults and employ the same policies, programs, and conditions of confinement for them as for other adult inmates.

The influx of younger offenders poses management, programming, and control challenges for correctional administrators. Young peoples' dietary and exercise needs differ from those of older inmates. Younger inmates may engage in more institutional misconduct, and management techniques appropriate for adults may be less effective when applied to juveniles. Evaluations of the prison adjustment of serious or violent youthful offenders are mixed. A few states report that young offenders pose special management problems or commit more disciplinary infractions than do older inmates, while other states report few differences. One systematic study of the prison adjustment of young offenders compared a sample of waived youths convicted of violent crimes committed before the age of seventeen with a matched sample of incarcerated inmates aged seventeen to twenty-one at the time of their offenses. The waived violent youths adapted less well, experienced more difficulty adjusting to institutional life, accumulated more extensive disciplinary histories, and earned less good time. Juveniles in adult facilities are more likely to be victims of violent attacks and sexual assaults and more likely to commit suicide that those confined in juvenile facilities.