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crime has the same effect as adult crime; thus, juveniles should receive the same consequences
and treatment from the criminal justice system regardless of any cognitive differences. Juvenile
crime escalated in the 1980s and early 1990s, causing the slogan “adult time for adult crime” to
become popular.29 The juvenile system came under attack by legislators and policy makers who
wanted to get tough on crime because they believed, perhaps subconsciously, that society’s interest
in public safety should trump its interest in the rehabilitation of its youth.30 Consequently, many
states began lowering the age at which a juvenile could be tried as an adult, and legislative waiver
became more common.31 Society, through the legislative process, made a collective judgment that
juveniles were just as culpable as adults, fully responsible for their actions, and thus should be
punished in the same way.32 In sum, the American judicial system rejected the Progressive
D. A Moderate Progressive Approach: 2005–2012
Societal panic over juvenile crime eventually subsided, giving way to a slightly less punitive
view of juvenile delinquency. This perspective is summarized as follows: Juveniles are somewhat
different than adults; the consequences that flow from their actions and the manner in which they
are treated by the criminal justice system should reflect this insight.33 The Supreme Court
memorialized this idea in Roper v. Simmons, holding that it is unconstitutional to impose the death
penalty on a juvenile who committed an offense while under the age of eighteen.34 The Court
reasoned that juvenile offenders should not be classified as adult criminal offenders, citing three
differences: (1) “A lack of maturity and an underdeveloped sense of responsibility . . . often
result[s] in impetuous and ill-considered actions and decisions”; (2) “juveniles are more vulnerable
or susceptible to negative influences and outside pressures, including peer pressure”; and (3) “the
character of a juvenile is not as well formed as that of an adult.”35 In other words, unlike adults,
be prosecuted as adults. As yet another period of transformation swept over the juvenile court,
concerns for due process and the constitutional rights of juvenile offenders were almost completely
eclipsed by concerns for public safety, incapacitation, and retribution—the latter being core
attributes of the adult criminal system.
Id. at 289.
29 Scott & Steinberg, supra note 14, at 806. The idea of the juvenile “superpredator” also became prevalent during this
time. See generally ELIKANN, supra note 9. From 1985 to present day, the number of drug arrests has tripled. Marc
Mauer, The Drug War and its Social Implications, 13 CHAP. L. REV. 695, 700 (2010). In 1980, U.S. prisons held
approximately 40,000 people for drug offenses, and in 2010, 500,000 people were incarcerated for drug offenses. Id.
There are about two million people in prisons in the United States today, with an incarceration rate of 743 people per
100,000 of America’s national population. Patrice A. Fulcher, Hustle and Flow: Prison Privatization Fueling the
Prison Industrial Complex, 51 WASHBURN L.J. 589, 591 (2012). To put these numbers in context, this is a higher
incarceration rate than those found in China, Russia, or Rwanda. Id.
30 Levick et al., supra note 28, at 289–90.
31 Scott & Steinberg, supra note 14, at 806 n.35; see Shefi, supra note 2 (discussing the three types of waiver in our
32 Levick et al., supra note 28, at 289–90; Scott & Steinberg, supra note 14, at 806–07.
33 See infra notes 34–40 (citing the Supreme Court’s recognition of the cognitive and developmental differences
between juveniles and adults).
34 Roper v. Simmons, 543 U.S. 551, 568 (2005).