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Article Excerpt
I. INTRODUCTION
Various theoretical approaches underscore the education, training, and research methods of the interdisciplinary law and psychology field. One key method of inquiry is the law, psychology, and justice perspective. (1) This method promotes social change and action through theory-sensitive psychological jurisprudence. (2) Psychological jurisprudence refers to "theories that describe, explain, and predict law by reference to human behavior." (3) Thus, as a function of translating theory into public policy, psychological jurisprudence tells judges and legislators how they should make decisions, guided by sensible values and relevant data that draws attention not merely to what law is, but to what law ought to be. (4)
Within the domain of psychological jurisprudence, several dominant principles and practices have emerged that attempt to grow the law-psychology-justice agenda, especially in an effort to secure what is best for offenders, victims, and the public more generally. Chief among these principles and practices are (1) commonsense justice, (2) therapeutic jurisprudence, and (3) restorative justice. Each of these notions is summarily discussed below.
The notion of commonsense justice, as developed by Professor Finkel, evolves from an understanding that while the law has specified an objective path for society to follow in deciding guilt or innocence, this path does not always take into account the ordinary citizen's notion of what is just and fair. (5) Thus, commonsense justice attempts to include community sentiment (the judgment of the people at large) so that the law's more subjective character can be honored. (6) Incorporating the legal, moral, and psychological reasoning adopted by everyday people enables the displacement of the (misguided) direction that the law sets forth so that more equitable decision-making can be pursued. This decision-making endeavors to "perfect and complete the law." (7)
Therapeutic jurisprudence is "the use of social science to study the extent to which a legal rule or practice promotes the psychological and physical well-being of the people it affects." (8) In other words, therapeutic jurisprudence seeks to understand where and how the law can act as a healing agent. (9) The aim of this practice is to address both civil disputes (10) and criminal concerns (11) in mental health law, wherein salubrious outcomes are based on psychological values and insights. (12)
Restorative justice is a form of mediated reconciliation. (13) Its goal is to repair the harm and suffering that follows in the wake of interpersonal, organizational, or even global violence. This type of injury affects the victim, the offender, and the community to which all opposing parties belong. (14) Candid disclosures and humanistic dialogue guide the healing process in which genuine, meaningful, and, ideally, transformative resolutions are sought. (15)
Interestingly, although not identified as such, these collective principles and practices are consistent with virtue-based ethics. Articulated most explicitly and systematically in Aristotle's Nichomachean Ethics, (16) this version of moral philosophy seeks to promote a type of human excellence that is rooted in reason whereby one's character is not determined by what one does (for example, weighing competing interests; endorsing rights, duties, and obligations) but, instead, is an expression of living virtuously. (17) The highest purpose of this existence is to embody eudaimonia (a flourishing or excellence in being), happiness, or a fulfilled life. Aristotle's inquiry led him to explore those virtues that most profoundly facilitate such human flourishing. These are habits of character learned through practice; these are qualities that become a part of the person through regularly exercising their use. (18) Indeed, as Aristotle noted: "Anything that we have to learn to do we learn by the actual doing of it: people become builders by building and instrumentalists by playing instruments. Similarly, we become just by performing just acts, temperate by performing temperate ones, brave by performing brave ones." (19)
At the core of commonsense justice, therapeutic jurisprudence, and restorative justice is the goal of growing the character of all parties concerned, while simultaneously repairing the harm and reducing the non-therapeutic effects that negatively affect those involved in a civil or criminal dispute. Indeed, rather than emphasizing the infliction of punishment for retributive ends, these three law and psychology notions endorse, mostly unknowingly, though certainly implicitly, Aristotelian moral philosophy. In short, they help to seed and encourage the development of personal character and moral virtue among offenders, victims, and the community to which both are intimately connected. Commonsense justice accomplishes this by promoting the public's reasoned participation in, and felt regard for, legal decision-making; therapeutic jurisprudence does this by assessing where and how the rule of law can be beneficial or harmful to citizens; and restorative justice achieves this by fostering a culture of forgiveness and compassion among warring individuals or groups. The collective effect of these three practices, then, is the cultivation of an integrity-based society. This is a society in which the moral fiber of individuals is more fully embraced and the flourishing prospects for human justice are more completely realized.
One particular law and psychology topic where the logic of psychological jurisprudence and the philosophy of virtue ethics are most germane is the competency-to-stand-trial doctrine. According to some investigators, the issue of trial fitness is "the most significant mental health inquiry pursued in the system of criminal law." (20) More specifically, on the issue of juvenile competency to stand trial, the matter is even more complicated given the presence of developmental maturity factors. Indeed, "[d]espite the fact that attorneys and judges need guidance to recognize and address these issues in dealing with young defendants, the relationship between immaturity and competence to stand trial has been largely ignored in research and policy circles." (21) The historical understanding of juvenile fitness for trial neglects to take into account the psychological limitations that such youthfulness naturally entails. (22) Indeed, many juveniles possess similar deficits as those who experience mental illness or mental retardation. However, those deficits affecting adolescent competency are not because of mental illness or mental retardation; rather, they are because of cognitive or emotional immaturity. (23)
In recent years, given the increase in violent juvenile crime, a more punitive response by the criminal justice system has followed. (24) For example, in terms of court adjudication, automatic forms of juvenile transfer to adult court have steadily increased given the current "get tough" policy rationale used to address serious adolescent offending. (25) Not surprisingly, however, the decision to rely on automatic waiver strategies has led to a number of processing, confinement, and recidivism concerns. Along these lines, investigators have empirically shown how developmental immaturity negatively affects a waived juvenile's ability to be fit for trial in the adult system. (26) Notwithstanding these findings, both the courts and state legislatures have mostly elected to ignore the adverse impact that current transfer policies have on juvenile offenders and on society more generally. While researchers have outlined the need to properly assess transferred youths for trial fitness purposes--with special consideration given to developmental factors--the legal community regrettably has not endorsed these recommendations. Interestingly, no study has yet undertaken an exploration of the ethical reasoning that informs legal decision-making with respect to automatic juvenile transfer practices where issues of developmental maturity and adjudicative competence figure prominently into the analysis. Stated differently, the logic of psychological jurisprudence and the philosophy of ethics communicated through the relevant court cases on the law and psychology subject of adolescent automatic waiver have not been systematically examined. A thoughtful inquiry into both may very well be the basis for translating (assumed) theory into worthwhile public policy.
Accordingly, the present inquiry focuses on these prescient matters. The moral philosophy embedded within those court cases that reflect the prevailing judicial perspective on automatic juvenile transfer, developmental maturity, and trial fitness will be made explicit. After so doing, it will then be possible to assess whether, and to what extent, current retributive policies toward serious juvenile offenders promote--or fail to promote--excellence in character for all stakeholders in which the value of living virtuously guides the jurisprudential reasoning.
In Part II, the relevant literature on adolescent waiver, the social and behavioral science community's assessment of it, and the established approaches to ethics are presented. The juvenile transfer commentary explains current practices in court processing and the corresponding problems. The empirical research examines adolescent waiver, especially when complicated by developmental maturity and competency to stand trial issues. The moral philosophy exposition outlines the key principles that inform each school of ethical thought. In Part III, the qualitative methodology utilized for this study is described. This includes a discussion of how the specific court cases that constitute the data set were selected, as well as an accounting of the two levels of textual exegeses that were applied to these legal decisions. In Part IV, the results are delineated. Of particular interest are the types of ethical reasoning conveyed through the jurisprudential reasoning of each court case and across all of the decisions. In Part V, several implications that emerge from the findings are reviewed. Mindful of commonsense justice, therapeutic jurisprudence, and restorative justice, a number of policy recommendations are provisionally specified. Ultimately, this portion of the study considers whether the moral philosophy informing automatic juvenile transfer practices as supported by the court system is flawed, misguided, or inadequate, particularly given recent strategies in the law and psychology field that advance virtue-based resolutions to crime and delinquency.
II. LITERATURE REVIEW
A. TYPES OF JUVENILE WAIVER: AN OVERVIEW
Approximately 200,000 adolescents under the age of eighteen in the United States are tried as adults each year, and roughly 12% of these transferred juveniles are under the age of sixteen. (27) The legal basis for adjudicating youths to the adult system is the waiver process. Three waiver forms exist.
During the 1960s and early 1970s, the most common transfer strategy was judicial waiver. (28) In this approach, the juvenile court judge uses his or her discretion and determines whether transfer to a criminal court is warranted based on a hearing. At the hearing, the judge reviews the evidence regarding the youth's amenability to treatment and potential threat to society. (29) Typically, a decision to transfer hinges on the seriousness of the offense and the extent and type of the offender's prior record.
The second waiver strategy is known as legislative offense exclusion or statutory waiver. (30) This approach is the easiest way for the state legislature to emphasize the seriousness of the crime and to promote a retributive agenda. Legislatures create juvenile courts, and, as such, they are responsible for defining the appropriate jurisdictional venue in which a case can be considered. Moreover, they can support transfer based on the seriousness of the offense and the youth's age. For example, a state may exclude from juvenile court jurisdiction any youth sixteen years of age or older who is charged with a serious offense such as murder. (31)
The third strategy is prosecutorial waiver, or "direct file." (32) In this approach, concurrent jurisdiction grants the prosecutor discretion to choose whether a youth can be charged in a juvenile or criminal court, without having to justify the decision through a judicial hearing or a formal record. (33) Current trends suggest that both statutory and prosecutorial waivers are the primary forms of juvenile transfer, (34) while judicial waiver is utilized less frequently. (35) Automatic waivers could, for example, alter the focus of a state's juvenile court to fit "get tough" policies demanded by the public in which a maximum age limit (for instance, fourteen) could guarantee that youths who exceed this restriction were automatically waived to the adult system. (36)
The various ways by which a juvenile can be transferred to criminal court enable judges, prosecutors, and legislatures to have considerable discretion in exercising their respective waiver decisions. Interestingly, judicial waiver allows for a hearing in which the juvenile's maturity level, amenability to treatment, and danger to society are all evaluated. (37) However, non-judicial forms of transfer, specifically statutory and prosecutorial waivers, do not adequately assess psychological maturity and amenability to rehabilitation. (38) A mandatory waiver only requires that the juvenile court find sufficient probable cause suggesting that the youth committed the crime according to the guidelines of the waiver statute. (39)
Additionally, in 2003, the Bureau of Justice Statistics reported findings from data collected in forty different jurisdictions on transferred juveniles during 1998. The data revealed that 41.6% of the adolescents were transferred by statutory exclusion, 34.7% were transferred by prosecutorial direct file, and only 23.7% were transferred by judicial waiver. (40) Consistent with these figures, new statutory waiver laws enacted in 1994 increased the number of juveniles automatically transferred to criminal court by 73% as compared with the waiver rate in 1986. (41) Collectively, these statistics suggest a departure from judicial waiver in favor of automatic forms of transfer whose purpose is to streamline the process of adjudicating youthful offenders. Statutory exclusion laws expose juveniles to adult criminal proceedings and sanctions without assessing for characteristics such as psychological maturity, social history, or prior record. (42) Moreover, these laws ensure that adjudication will be based on the offense rather than on the offender, that the severity of penalties will increase, and that judicial discretion will greatly diminish. (43) No formal guidelines govern prosecutorial discretion in direct-file waivers, and inadequate access to proper personal and clinical records about youthful offenders may inaccurately lead to false determinations concerning the most dangerous juveniles. (44) In addition, the lack of formal guidelines means that prosecutorial discretion is based more on subjective factors, such as where the youth resides and the severity of the offense, rather than more objective measures, such as assessing for maturity level, amenability to treatment, and level of risk or threat. (45)
A primary policy rationale for relying on the newer forms of automatic waiver is the deterrence of future juvenile crime. (46) Regrettably, evidence-based research has yet to support this rationale. (47) For example, employing a quasi-experimental, multiple-interrupted-times-series design, investigators concluded that statutory exclusion laws in twenty-two states had no statistically significant effect on general deterrence. (48) Another study, utilizing the same research design and published in this Journal, examined fourteen states with direct-file statutes; investigators found that direct-file laws had no lasting deterrent effect on juvenile crime. (49)
Further, New York statistics indicate that more than 60% of transferred youth recidivate within thirty-six months. (50) Conversely, a study of 800 adolescent offenders charged with robbery found that those adjudicated in juvenile court recidivated roughly 20% less than those waived to the adult system. (51) A Pennsylvania study revealed that juveniles transferred to criminal court received harsher punishments for similar crimes than young adults (eighteen to twenty-four years-old) deemed ineligible for juvenile court. (52) As investigators noted, transferred adolescents received eighteen months incarceration on average, while their young adult counterparts were confined for an average of only six months. (53) Thus, youthfulness or young age is used as an aggravating, rather than a mitigating, factor for transferring juveniles (54) despite the absence of empirical evidence supporting juvenile transfer based on the deterrence-of-future-crime justification. Complicating this disturbing trend are studies that report the rate of adult incarceration for transferred adolescents. To illustrate, the Bureau of Justice Statistics reported in 2003 that 64% of juveniles convicted in criminal court during 1998 were sentenced to incarceration, with 43% percent of that total serving terms in adult prisons and the remainder sentenced to confinement in jail settings. (55)
B. THE SOCIAL AND BEHAVIORAL SCIENCE RESEARCH
The extant research on juvenile waiver--including types of transfer, policy justifications for such a practice, and recidivism trends that follow-have led to several social and behavioral science questions about the appropriateness of exposing an adolescent to the criminal trial. In particular, investigators have examined six questions: (1) Are automatic waivers punitive in nature, and do the courts adequately assess developmental maturity factors when considering competence to stand trial; (2) Can the psychosocial aspects of developmental maturity be specified and, if so, what are they; (3) Is developmental immaturity a sufficient factor to declare a waived juvenile incompetent to stand trial; (4) How does one accurately measure the multiple dimensions of maturity; (5) What have researchers proposed to ensure the inclusion of developmental maturity factors in competency evaluations for purposes of courtroom decisionmaking; and (6) Why is it important to assess developmental maturity in cases where juveniles are waived to the adult system? Each concern is summarily discussed below.
Some researchers note that the principal focus of waivers based on prosecutorial discretion and automatic transfer emphasizes the crime committed to the near exclusion of the juvenile who transgresses. (56) As investigators warn, this orientation makes issues such as public safety, retribution, and deterrence so compelling that the courts and legislatures are less inclined to preserve the legal distinctions between adolescents and their adult counterparts. (57) Critics maintain that the danger with this "conventional belief" is its assumption that once a juvenile is designated for automatic transfer to criminal proceedings, the judgment regarding adult sanctions is also reached. (58) As a practical matter, what this means is that the youth faces imminent punishment as an adult without consideration for possible developmental immaturity or related deficits. Further, investigators argue that ignoring the importance of developmental immaturity and offender age in waiver determinations is akin to "ignor[ing] an elephant that has wandered into the courtroom." (59) Indeed, as the empirical evidence indicates, deficiencies in "psychosocial maturity" among juveniles are caused by their impulsivity, (60) reliance on peer acceptance, (61) lack of autonomy, (62) and poor judgment in relation to future consequences. (63) Given these findings, researchers conclude that youthful offenders must be evaluated for trial fitness before a transfer decision can be made. (64)
As previously mentioned, psychosocial factors affecting a youth's reasoning process and ability to adequately function cognitively during the trial are numerous, varied, and profound. (65) For example, with respect to peer influence, impaired adolescents are not fully capable of understanding the long-term consequences of their actions, engage in decision-making that typically reflects an absence of independent reasoning, and are highly inclined to pursue risk-taking behaviors symptomatic of their impulsivity. (66) Moreover, with respect to autonomy, Corriero asserted that the diminished criminal responsibility of wayward juveniles is "explained in part by the prevailing circumstances [in which they] have less control, or less experience with control, over their own environment." (67) Certainly, as researchers endeavor to more clearly define and operationalize developmental maturity factors, their potential use in a legal context--especially for furthering the construct of competence to stand trial--will likely increase as well. (68) However, to date no official premise exists in which developmental immaturity represents a basis to declare a juvenile incompetent for adjudicative purposes. (69) The lack of such a premise is linked to the significance courts and state legislatures avail to the notion of maturity.
Indeed, one of the more common concerns regarding competency to stand trial among transferred youth is whether developmental immaturity is a sufficient factor when making determinations about a juvenile defendant's mental fitness for trial. (70) Most courts require that the defendant be diagnosed as suffering from some form of psychiatric illness or mental retardation as a prerequisite for an incompetency determination. (71) Research indicates that roughly one-third of juveniles between eleven and thirteen years of age, and one-fifth of juveniles between fourteen and fifteen years of age, lack the requisite competence to stand trial. (72) Importantly, the findings reveal that adolescent immaturity affects the juvenile defendant's behavior and ability to make decisions regarding future orientation and risk perception during the legal proceedings. (73) When judgment is impaired or when maturity stemming from sufficient psychosocial development is absent, then the youth's ability to competently function in adult criminal proceedings is compromised.
In contrast to previous research, a Florida study recently found that a sample of 118 direct-filed male youths between the ages of sixteen and seventeen had few differences in competence-related abilities when compared to a sample of 165 incarcerated adults between the ages of...
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