The Best Interest Is the Child: A Historical Philosophy for Modern Issues

A little over a century after the creation of the first juvenile court in America, the states and the federal government continue to try to find an effective and practical solution to juvenile delinquency. Beginning with the “Best Interest of the Child Standard” in 1899, juvenile justice policy has evolved into a mixed bag of philosophies. State statutes littered with “Best Interest” rhetoric, have interestingly resulted in state policies that are retributive in nature and disproportionately affect minority communities. The disconnect between theory and practice is the product of decades of socio-political influence on juvenile justice policy as well as a replacement of the “Best Interest” standard with staunch retributive ideals. This article puts forth a contemporary understanding of “Best Interest,” so as to unite theory and practice. This union may provide guidance for more effective policies in the realm of juvenile justice. America faces a costly and overburdened prison industrial complex that is fed by the juvenile justice system. Transfer provisions seamlessly transport juvenile offenders into adult court for criminal prosecution. Juveniles adjudicated in adult court face harsher penalties and diminished socio-economic opportunity than juveniles adjudged in juvenile court. While state lawmakers have recently recognized a decrease in violent crime among juveniles overall, many have refrained from advocating policies that promote true “Best Interest” ideals and instead have maintained a focus on law and order. Recent scientific research and psychosocial studies along with the past decade of United ∗ Associate Professor of Law, Indiana University Robert H. McKinney School of Law, LL.M. University of Wisconsin Law School, 2011. My sincerest gratitude to my commentators Kaaryn Gustafson, Carlton Waterhouse, Cheryl Butler, Sarah Jane Foreman, Amy Reichbach, Joel Schuum, Jennifer Drobac and Margaret Ryznar. Many thanks to ClassCrit and the University of Wisconsin Law School as well as Law and Society 2013 where I received a number of helpful and insightful comments. I also owe a significant thanks to my research assistant Cassie Nielson and my most valuable player Julie Davis. SILVA.FINAL (UPDATED 6.27) (DO NOT DELETE) 6/28/2014 7:21 AM BYU Journal of Public Law [Vol. 28 416 States Supreme Court precedent suggest that policymakers’ emphasis on retribution is misguided and anachronistic. Instead, legislators ought to be recognizing the real differences between juveniles and adults namely the “immaturity” of minors as well as their penchant for rehabilitation. This principle is already entrenched in other areas of law such as the minor abortion line of cases. This article advocates for a return to the “Best Interest of the Child” standard. Calling for an organic view of “Best Interest where contemporary contextual factors may be considered,” this article suggests that “Best Interest” calls for a focus on mitigation. This argument builds on Elizabeth S. Scott’s and Laurence Steinberg’s mitigation theory of juvenile justice. Scott and Steinberg argue that adolescents, because of their biological and psychosocial distinctions, possess a diminished capacity and are thereby less criminally blameworthy. Therefore, they argue, this diminished capacity ought to be recognized in the adult prosecution of juveniles. This article argues that Scott and Steinberg’s mitigation paradigm implicitly contains Best Interest principles that may help guide legislators in fashioning legal tools for which to adjudicate juvenile offenders in adult court. Beginning with a call for a “presumption of immaturity” in transfer decisions, this essay begins to examine practical solutions within a mitigation paradigm guided by Best Interest principles. Borrowing from minor abortion jurisprudence, it is contended that in those jurisdictions that have established automatic transfer provisions there ought to be a “presumption of immaturity” that the state must overcome prior to commencing an adult prosecution of a juvenile. Moreover, in the actual adjudication of a juvenile in adult court, defenses such as diminished capacity and extreme mental or emotional disturbance (“EMED”) may provide a vehicle for the admissibility of psychological and neurological evidence associated with adolescent immaturity and development thereby allowing the fact-finder to consider such evidence in its determination of criminal blameworthiness.