Juvenile Justice Reform 2.0

Before the 1954 decision in Brown v. Board of Education, the United States Supreme Court’s exercise of judicial review did not support the notion that constitutional litigation could be an effective instrument of social reform. The Court’s principled rejection of racially segregated public education, however, gave new legitimacy to the concept of judicial review, transforming it from an obstacle into a principal means of achieving social progress. Since then, federal courts have impacted public policy in many areas—from housing, welfare, and transportation, to mental health institutions, prisons, and juvenile courts. Yet, there are inherent structural challenges to effecting institutional change through litigation: courts are themselves passive institutions that respond slowly to new information; they are oriented toward past events and circumstances rather than the possibilities implicit in future ones; and they graft qualifications onto preexisting law rather than engaging in a fresh consideration of the issues. In his major work,  Assistant Professor of Law, University of North Carolina at Chapel Hill School of Law (tbirckhe@email.unc.edu). B.A. Yale College; J.D. Harvard Law School. For their helpful comments and suggestions on earlier drafts, I am grateful to Barbara Fedders, Cynthia Godsoe, Larry Helfer, Ellen Marrus, Kathryn Sabbeth, Joe Tulman, Eric Zogry; the faculty at the May 2011 conference at the University of Houston Law Center, Zealous Advocacy: Back to Basics; and the participants in the March 2011 symposium at Brooklyn Law School on Adolescents in Society: Their Evolving Legal Status, presented in partnership with the Journal of Law & Policy. Allison Brandt provided excellent research assistance. 16 JOURNAL OF LAW AND POLICY The Hollow Hope: Can Courts Bring About Social Change?, Professor Gerald Rosenberg persuasively argued that in order to overcome these constraints in a particular case or controversy, certain key elements must be present: incentives for the institution to change; costs to the institution for not changing; the existence of parallel institutions to help implement the change; and the use of court orders to leverage additional resources to bring about the change or to serve as a cover for administrators who are willing to act but fear political repercussions. For more than sixty years after the founding of the first juvenile court in 1899, its philosophy and guiding principle were based on the rehabilitative ideal. This model rejected the traditional adversary system found in criminal court proceedings in favor of informal procedures, indeterminate sanctions, judicial discretion, and individualization. The 1967 Supreme Court case of In re Gault struck at the core assumptions of this paradigm with its emphasis on the functional similarity between juvenile and adult criminal courts and extension of key due process protections to youth charged in delinquency court, including the right to counsel and the privilege against self-incrimination. As revolutionary as the Gault decision was, however, its holding failed to translate into long-term sustainable reform—the result, at least in part, of the absence of the requisite factors articulated by Professor Rosenberg. Whether the recent Supreme Court cases of Roper v. Simmons, Graham v. Florida, J.D.B. v. North Carolina and their progeny will facilitate such reform remains an open question. This Article, written for a symposium at Brooklyn Law School, Adolescents in Society: Their Evolving Legal Status, explores the potential for twenty-first century Supreme Court decisions implicating juveniles’ constitutional rights to transform the way in which the courts process and punish young offenders. It discusses the method and means by which institutional reform litigation brings about change and the structural Juvenile Justice Reform 2.0 17 challenges that arise when courts attempt to transform complex institutions. It provides a brief review of Supreme Court decisions prior to Brown that served to prevent rather than enable social change in the areas of slavery, racial segregation, and workers’ rights; it contrasts these cases with the decision and impact of Brown. It argues that although In re Gault was a foundational legal holding, it did not translate into effective policy due in part to local officials’ failure to implement the decision as expected and lawmakers’ inability to enact legislation that was true to the spirit of Gault. The Article argues that based on the analysis developed by Professor Rosenberg, recent Supreme Court decisions ending the juvenile death penalty and juvenile life without parole (JLWOP) sentences for non-homicides, and holding that a child’s age properly informs the Miranda custody analysis, could lead to significant change in both the juvenile and criminal justice systems for young offenders. It acknowledges the limitations of this theory and the challenges that are likely to arise, and concludes that, although courts can reform complex institutions, constitutional litigation is an unreliable path to social change. 18 JOURNAL OF LAW AND POLICY