1 The Juvenile Justice System: Not Necessarily in the Best Interests of Children Cynthia Conward * I. INTRODUCTION Consider the following scenario: Three young men, Bob, age thirteen, John, age fifteen, and Henry, age seventeen, steal their neighbors car for the purpose of joyriding around the city on one particularly warm night. During their ride, they are detected by a police officer upon not properly signaling when turning. The police officer signals them to stop. They panic, and the driver, age fifteen, is encouraged by the others in the car to speed to avoid the police. In their haste, they damage three storefront properties and several cars, one of which contains a passenger whose head strikes the front window and consequently dies from the injuries. They are arrested and brought together to the police station where they are fingerprinted, detained, and eventually charged with a series of felonies. Using the foregoing hypothetical throughout this article, I will conduct a comparative study that discusses changes that have occurred in the juvenile justice system from common law to the present. The purpose will be to demonstrate that the treatment of juvenile offenders in the American justice system has come full circle. In addition, I will discuss alternative measures that might be implemented to both prevent juveniles from offending, provide options for rehabilitation, and punish juveniles appropriately for the crimes they commit. * Assistant Professor of Law, Southern New England School of Law; Former Assistant Regional Counsel, Department of Social Services; New England School of Law, J.D.; Assumption College, M.A.; University of Massachusetts at Dartmouth, B.A.. 39
2 40 NEW ENGLAND LAW REVIEW [Vol. 33:1 Major statutory changes are currently being made to the American juvenile justice system that permanently affect the future of youthful offenders and their families. Why are these statutory changes occurring? Many believe that juvenile crime is increasing, that juvenile crime is becoming more violent, that juvenile crime is more often directed at persons than at property, that juveniles prey on elderly and on females, and that juveniles more often attack strangers than acquaintances. 1 As a result of these beliefs, a majority of states have legislatively redefined the juvenile courts purpose by diminishing the role of rehabilitation and acknowledging the importance of public safety, punishment, and accountability in the juvenile justice system. Part II of this article will provide a brief historical background of the juvenile justice system in the United States. 2 Part III will discuss the current statistics on juvenile crime rates. 3 Part IV will compare present day juvenile justice systems of several states. 4 Part V will discuss alternative measures that, although punitive in nature, still have the best interests of the child as a priority. 5 II. HISTORICAL BACKGROUND A. Common Law At common law, children under seven were considered incapable of possessing criminal intent. Beyond that age, they were subject to arrest, trial, and in theory to punishment like adult offenders. 6 Prior to 1889, the state was not deemed to have the authority to accord [juveniles] fewer procedural rights than adults. 7 Under these legal standards, young of- 1. See, e.g., JAMES C. HOWELL, JUVENILE JUSTICE AND YOUTH VIOLENCE 47 (1997) (noting that misleading statements by the media have fed public distortion regarding the amount of crime committed in the United States by juveniles); see also PATRICIA TORBET ET AL., U.S. DEP T OF JUSTICE, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, STATE RESPONSES TO SERIOUS AND VIOLENT JUVENILE CRIME 1 (July 1996). 2. See infra notes 6-46 and accompanying text. 3. See infra notes and accompanying text. 4. See infra notes and accompanying text. 5. See infra notes and accompanying text. 6. In re Gault, 387 U.S. 1, 16 (1967). 7. Id. at 17. Beginning with the In re Gault decision in the Supreme Court began to impose procedural due process requirements on juvenile adjudication. See JANET E. AINSWORTH, THE COURT S EFFECTIVENESS IN PROTECTING THE RIGHTS OF JUVENILES IN DELINQUENCY CASES, THE JUVENILE COURT 65 (Winter 1996), available in <http://www.futureofchildren.org>. These requirements were designed to ensure that juveniles accused of crimes would have an opportunity to
3 Fall, 1998] JUVENILE DELINQUENCY 41 fenders would be arraigned, tried, and, if convicted, punished as adults. 8 At the same time, however, many rights granted to adult offenders had historically been denied juvenile offenders. 9 B. The Moralist and Progressive Movements At the end of the nineteenth century, moralist proponents 10 created correctional institutions designed specifically for wayward children and juvenile delinquents. 11 Such institutions were developed as a response to the emergence of pauperism 12 and the development of prisons. 13 Specifically, the work of so-called gentleman reformers fueled changes within the system, viewing wayward youth as a product of their bad environment and the failure of the family. 14 This ideology changed with the creation of the first Juvenile Court in Chicago in Progressive contest the allegations meaningfully. Id. This included right to notice of the charges, the right to counsel, the right to cross-examine the witnesses against the accused, and the privilege against compelled self-incrimination. Id. 8. See In re Gault, 387 U.S. at See id. at 14 (noting that bail, indictment by grand jury, right to a public trial and trial by jury had historically been withheld from juveniles). 10. The American Heritage Dictionary defines a Moralist as [o]ne who follows a system of morals and moral problems; one who is unduly concerned with the morals of others. THE AM. HERITAGE DICTIONARY OF THE ENG. LANG. 925 (3d ed. 1992). 11. See HOWELL, supra note 1, at 3-6 (citations omitted). 12. See id. A term coined by white, Anglo-Saxon Protestants, pauperism referred to the large waves of Irish immigrants arriving in the United States in the 1800s. See id.; see also WEBSTER S THIRD NEW INTERNATIONAL DICTIONARY 1657 (1986) ( [A] person destitute of means except such as are derived from charity[.] ). Paupers were considered by others to be poor, destitute, and idle people, slatterns and drunken hell-raisers. See HOWELL, supra note 1, at 3. (citing ROBERT S. PICKETT, HOUSE OF REFUGE: ORIGINS OF JUVENILE REFORM IN NEW YORK STATE, (Syracuse U. Press 1969)). 13. See HOWELL, supra note 1, at 4. Prisons were first viewed as a humane alternative to the barbaric public beating and torture of adult criminals and juvenile delinquents. Id. at See id. at 6. Gentlemen reformers were largely composed of white, Anglo-Saxon Protestants, guided by the eighteenth century Enlightenment, who set out to eliminate the societal effects of pauperism. See id. Meetings between gentlemen reformers eventually led to the formation of the Society for the Prevention of Pauperism in New York City, which called public attention to the corruptive effects of incarcerating children with adult criminals. See id. The group eventually changed its name to The Society for the Reformation of Juvenile Delinquents. See id. 15. Illinois Juvenile Court Act, 1899 Ill. Laws 133. The reform efforts behind the passage of the Illinois statute were intended to create improvements in institutions that intervened on behalf of children. SANFORD J. FOX, THE EARLY HISTORY OF THE COURT, THE JUVENILE COURT 29 (1996), available in
4 42 NEW ENGLAND LAW REVIEW [Vol. 33:1 reformers, 16 who had formerly introduced probation, parole, indeterminate sentences, and rehabilitation of criminals into the criminal justice system, created the court. 17 Progressive reforms were initiated in order to give young lawbreakers a combination of punishment, treatment, and counseling with the aim of helping youths reconstruct their lives. 18 These early reformers believed that society s role was not to ascertain whether the child was guilty or innocent, but What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career. 19 Progressive reformers felt that the idea of crime and punishment should be abandoned, that the child should be treated and rehabilitated, and [that] the procedures, from apprehension through institutionalization, [should be] clinical rather than punitive. 20 C. Parens Patriae and the Best Interests Standard In the 1960s, the courts underwent further reform, developing into a system based on the concept of parens patriae. 21 Parens Patriae engen- <http://www.futureofchildren.org>. Reformers showed little concern for the procedures used in such interventions, and the resulting statutory language provides few procedural guidelines. Id. 16. Refers to those who participated in the Progressive movement. See generally LEWIS P. TODD & MERLE E. CURTI, RISE OF THE AMERICAN NATION 593 (1986). The Progressive movement marked a period in American history during which there was an organized effort to correct abuses and injustices in United States life, to restore greater equality of economic opportunity, and to return government control to the people. See id. 17. See id.; see also Illinois Juvenile Court Act, 1899 Ill. Laws 137, NAT L COUNCIL OF JUVENILE COURT JUDGES, DIRECTORY AND MANUAL 255 (1964) (discussing the aims of the National Council on Crime and Delinquency). 19. In re Gault, 387 U.S. 1, 15 (1967). 20. Id. at See also Barry C. Feld, The Transformation of the Juvenile Court 75 MINN. L. REV. 691, 695. ( Progressives viewed youthful autonomy as malign; juvenile court jurisdiction over unruly children reinforced parental authority and allowed state intervention when parents were inadequate for the task. ) (citations omitted). 21. Parens patriae refers to the traditional role of the state as sovereign and guardian of persons under a legal disability.... BLACK S LAW DICTIONARY 1114 (6th ed. 1990). See also Feld, supra note 20, at 695 (referring to the legal doctrine of parens patriae as legitimated intervention ). [P]arens partiae... gave the state authority over the custody and control of children who lacked proper parental care. AINSWORTH, supra note 7, at 64. Juvenile court personnel used informal, discretionary procedures to diagnose the causes of and prescribe the cures for delinquency. By separating children from adults and providing a rehabilitative alternative to punishment, juvenile courts rejected the jurisprudence of criminal law and its procedural safeguards, such as juries and lawyers. Because the
5 Fall, 1998] JUVENILE DELINQUENCY 43 dered the philosophy that wise adults should be decision-makers in the best interests of the minor. 22 Ultimately, the courts shifted away from a system of parens patriae to one that afforded juveniles all of the protections of the adult criminal system legal representation, exclusionary rules and other procedural niceties without the adult system s serious sanctions and with the promise of confidentiality. 23 This approach included individualized treatment by social workers and other professionals devoted to the child s best interests. In fact, the best interests of the child standard was originally utilized in child custody cases. 24 The best interests approach had as its purpose to avoid arbitrary decisions with respect to a child s essential needs, and the best interests standard used the child s physical and psychological well being as its cornerstone. 25 To illustrate, if we were to apply the best interests standard to our hypothetical, the court would have found that Bob, John, and Henry did not have the criminal intent, or mens rea, 26 to commit a crime. Instead, they would be declared delinquents, 27 having committed delinquent acts, 28 and would be charged accordingly as delinquent children. 29 This court s jurisdiction encompassed youths suffering from abuse, dependency, and neglect, as well as those charged with criminal offenses and non-criminal disobedience, proceedings were characterized as civil rather than criminal. Theoretically, a child s best interests, background, and welfare guided dispositions. Because a youth s offense was a symptom of his or her real needs, sentences were indeterminate, nonproportional, and potentially continued for the duration of minority. Feld, supra note 20, at Rita Kramer, The Young and Lawless, WALL ST. J., Feb. 27, 1996, at A See AINSWORTH, supra note 7, at That is, cases which involve other types of state intervention (e.g., child neglect/abandonment cases or children in need of services). 25. Gilbert v. Gilbert, 1996 WL (Conn. Super. 1996) (citation omitted). 26. A guilty mind; a guilty or wrongful purpose; a criminal intent. BLACK S LAW DICTIONARY 889 (5th ed. 1979). Mens rea is an element of criminal responsibility. See United States v. Greenbaum, 138 F.2d 437, 438 (3d Cir. 1943); see also MODEL PENAL CODE 2.02 (1985). 27. The definition of delinquent varies depending on the state. Generally, [a] delinquent child is one whom the court has found to have committed a delinquent act, and who is in need of treatment, rehabilitation, or supervision. In re Garner, 326 A.2d 581, 584 (Pa. 1974). The Rhode Island definition of a delinquent states that, when applied to a child shall mean and include any child who has committed any offense which, if committed by an adult, would constitute a felony, or who has on more than one occasion violated any of the other laws of the state or the United States.... R.I. GEN. LAWS (5) (1994 & Supp. 1998). 28. Alabama, for example, deems a delinquent act an act committed by a child that is designated a violation, misdemeanor, or felony offense under the law of this state or of another state if the act occurred in another state or under federal
6 44 NEW ENGLAND LAW REVIEW [Vol. 33:1 approach would offer the boys the opportunity for rehabilitation within the juvenile court system. This option of rehabilitation is coupled with the notion that, upon reaching maturity, a juvenile offender may yet apply to college, obtain gainful employment, and become a contributing member of society without being branded a criminal. 30 These were the primary goals of best interests reformers. D. OJJDP In 1974, as a response to increased attention being given to juvenile crime, the President s Commission on Law Enforcement and Administration of Justice was established by the Juvenile Justice and Delinquency Prevention Act of to examine infirmities within the juvenile justice system. 32 The office conducted the first comprehensive assessment of the American juvenile justice system, finding it to be ineffective. 33 As a means of handling minor offenders in the community in lieu of juvenile court, the crime commission recommended that communities establish neighborhood youth-serving agencies, which would act as brokers of all community services for young people It also recommended limitations on confinement and encouraged early intervention and provisions of services outside the juvenile justice system. 35 E. State Responses to Increases in Juvenile Crime Even with such recommendations for change, one could not ignore that in the 1970s there was an increase in violent crime. 36 States utilized the social reforms of the sixties as a basis to hold juveniles accountable for violations of the law. 37 For example, [i]n 1976, New York enacted a designated felony statute 38 enabling courts of juvenile jurisdiction to senlaw or a violation of a municipal ordinance except violations of municipal curfew ordinances. ALA. CODE (8) (1995 & Supp. 1997). 29. A delinquent child in Alabama is a child who has committed a delinquent act and is in need of care or rehabilitation. ALA. CODE (9) (1995 & Supp. 1997). 30. Carlton J. Snow, Expungement and Employment Law: The Conflict Between an Employer s Need to Know About Juvenile Misdeeds and an Employee s Need to Keep Them Secret, 41 WASH. U. J. URB. & CONTEMP. L. 3, (1992). 31. Pub. L. No , Sept. 7, 1974, 88 Stat (1974). 32. See HOWELL, supra note 1, at See id. 34. Id. at See id. 36. See Hunter Hurst III, Crime Scene: Treating Juveniles as Adults, TRIAL, July, 1997, at See id. 38. Id. at (citing N.Y. FAM. CT. LAW 301.2(8) (McKinney 1992)).
7 Fall, 1998] JUVENILE DELINQUENCY 45 tence juveniles charged with designated felony offenses to five years incarceration. 39 Two years later, New York passed legislation redefining as criminal offenders anyone 13 or older charged with a Class A or B felony. 40 At the same time, Florida passed laws pioneering the use of mandatory waiver 41 and prosecutorial discretion. 42 These provisions made it statutorily permissible for a judge or a prosecutor to file cases involving certain youthful offenders directly in the criminal courts. 43 In 1982, even Illinois, the home of the original Juvenile Court, changed its laws to exclude entirely from juvenile jurisdiction any youth age fifteen or older who was charged with murder, armed robbery, or rape. 44 By the close of the 1996 state legislative sessions, 49 of the 50 states and the District of Columbia had enacted statutes authorizing prosecution of children 14 or older charged with serious felony offenses in criminal court and/or the sentencing of these children to criminal punishment by the juvenile court. 45 Hawaii is the only state without such legislation. 46 Known as the Designated Felony Act, the New York statute states that an act which would constitute a crime if performed by an adult (e.g., murder in the first or second degree, kidnapping in the first degree, arson in the first degree, manslaughter in the first degree, assault in the first degree, rape in the first degree), will be attributable to a juvenile as if he or she were an adult. See N.Y. FAM. CT. LAW 301.2(8) (McKinney 1993 & Supp. 1998). 39. Hurst, supra note 36, at 34-35; see also N.Y. FAM. CT. LAW 301.2(8) (McKinney 1993 & Supp. 1998). 40. Hurst, supra note 36, at 35; see also N.Y. CRIM. PROC. LAW 1.20 (McKinney 1992). 41. Hurst, supra note 36, at 35. See also TORBET ET AL., supra note 1, at 3. Judicial waiver provisions give the juvenile court judge the authority to decide whether to waive jurisdiction and transfer the case to criminal court. Id. 42. Hurst, supra note 36, at 35. Prosecutorial discretion provisions give the prosecutor the authority to decide which court will have jurisdiction over a case when both the juvenile and criminal courts have concurrent jurisdiction. TORBET, supra note 1, at 16. This mechanism is typically limited to certain cases based on the juvenile s age and offense, and sometimes on their criminal history. Id. 43. See Hurst, supra note 36, at Barry C. Feld, The Juvenile Court Meets the Principle of the Offense: Legislative Changes in Juvenile Waiver Statutes, 78 J. CRIM. L. & CRIMINOLOGY 471, 515 (1987). See also 705 ILL. COMP. STAT. ANN. 405/5-4(6)(a) (West 1992 & Supp. 1998). 45. Hurst, supra note 36, at 35. See also LINDA A. SZYMANSKI, U.S. DEP T OF JUSTICE, NAT L COUNCIL FOR JUVENILE JUSTICE SNAPSHOT, PROSECUTING FOURTEEN-YEAR-OLDS IN CRIMINAL COURT (Jan. 1997). 46. Hurst, supra note 36, at 35. See also HAW. REV. STAT (1993 & Supp. 1997) (setting the minimum age at sixteen and requiring that the juvenile is not committable to an institution for the mentally ill, is not treatable in a state institution designed for the care and treatment of children, or that the safety of the community requires that the juvenile continue under judicial restraint for a period
8 46 NEW ENGLAND LAW REVIEW [Vol. 33:1 III. CHANGING STATISTICS A. Arrest & Confinement Rates Between 1987 and 1991, the arrest rate of juveniles for violent crimes (i.e., murder, forcible rape, robbery) grew twice as rapidly as the arrests of adults: fifty percent versus twenty-five percent. 47 Between 1987 and 1991, juvenile murder and nonnegligent manslaughter cases rose eightyfive percent. 48 The comparable rate for adults was twenty-one percent. 49 Recent studies, however, demonstrate that while the number of violent crimes in this country has increased, juveniles are responsible for only a small fraction of such crimes. 50 In 1994 juveniles accounted for just nineteen percent of all violent crime arrests. 51 Adults are thus responsible for the other eighty-one percent. Although juveniles are contributing to the problem of violent crime, it would be inaccurate to conclude that juveniles are driving the violent crime trends. In any given year, ninety-four percent of American juveniles are arrestfree. 52 [F]ewer than one half of 1 percent of juveniles in the United States were arrested for a violent offense in In 1995, the arrest rate for homicides committed by youths aged ten to seventeen had extending beyond his or her minority); State ex rel. Marsland v. Town, 668 P.2d 25 (1983) (discussing discretionary waiver in Hawaii). [A]bsent a clear showing of manifest abuse of its discretion, a [Hawaii] family court judge s determination that waiver is proper is not reversible upon allegations attacking the relative weight given the factors comprising the decision to waive. Precise standards as to the factors to be considered, as well as the weight to be attributed to them in a waiver determination, are not constitutionally or otherwise required to be set out in the waiver. In re Doe, 618 P.2d 1150, (1980) (citing State v. Stanley, 592 P.2d 422 (Haw. 1979). See also In re Doe, 623 P.2d 262 (1981) (applying the abuse of discretion standard). 47. HOWARD SNYDER, U.S. DEP T OF JUSTICE, NATIONAL CENTER FOR JUVENILE JUSTICE, ARREST OF YOUTH (July 1993). 48. See id. 49. See id. 50. See Susan Byrnes, Focus is on Changing System: Hard-Liners Push for Teens in Adult Prison; Prevention Proponents Seek to Stop Crime, SEATTLE TIMES, Aug. 30, 1996, at A TORBET, supra note 1, at HOWARD SNYDER ET AL., U.S. DEP T OF JUSTICE, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, JUVENILE OFFENDERS AND VICTIMS: 1996 UPDATE ON VIOLENCE (1996). 53. TORBET, supra note 1, at 1.
9 Fall, 1998] JUVENILE DELINQUENCY 47 dropped 22.8 percent from an all-time high in The overall rate of juvenile violent crime (which includes assault, robbery, and rape, as well as murder) declined by 2.9 percent in In the same year in Washington State, the arrest rates of juveniles for violent crimes declined. 56 Still, nearly every detention center and juvenile prison in the state is overcrowded. 57 The Federal Bureau of Investigation reported that violent crime declined by six percent in 1996, 58 the fifth consecutive annual reduction in violent crime rates. 59 Despite the decline in juvenile violence, however, it has been too late to affect legislative reform. 60 B. Media Attention Sadly, juveniles are attributed a significant amount of the blame for the perceived rise in violent crime. In large part this stems from media sensationalism of juvenile offenders. Extensive media coverage of violent crimes in predominantly urban neighborhoods has fueled perceptions that violence committed by juveniles has reached epidemic proportions and that no community is immune to random violent acts committed by young people especially those involving a weapon. 61 A 1994 Gallop Poll concluded that, because of recent news coverage of violent crimes committed by juveniles, the public has a greatly inflated view of the amount of violent crime committed by people under the age of In fact, the average adult believes that youths commit 43 percent of all violent crime, three times the true number. 63 Recent studies by Berkeley researchers found that two-thirds of California s big-city broadcast-news stories on violence involved youths. 64 This was found despite the fact that California s violent-crime increase in the last decade has centered not on teenag- 54. Fox Butterfield, After a Decade, Juvenile Crime Begins to Drop, N.Y. TIMES, Aug. 9, 1996, at A See id. 56. See Byrnes, supra note 50, at A See id. 58. See U.S. DEP T OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, UNIFORM FBI REPORT, CRIME IN THE UNITED STATES (1997); see also HOWARD N. SNYDER, U.S. DEP T OF JUSTICE, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, JUVENILE ARRESTS (1997). 59. See id. 60. See Hurst, supra note 36, at TORBET, supra note 1, at Michael A. Males, Adults Now More Violent Than Youth, THE SACRAMENTO BEE, Sept. 22, 1996, at F1. On the racial implications of this reporting, see supra notes and accompanying text. 63. Id. 64. Id.
10 48 NEW ENGLAND LAW REVIEW [Vol. 33:1 ers, but on adults older than thirty. 65 Isolated cases of extreme juvenile violence are often the most sensationalized by the media. Recent examples of such media intervention are the cases of Edward O Brien, the fourteen year-old Massachusetts boy who stabbed his neighbor to death; 66 Mitchell Johnson and Andrew Golden, the eleven and thirteen year-olds who perpetrated the recent slaughter outside the Arkansas schoolhouse; 67 and Luke Woodham, the teenager charged with the killing of his classmates and teachers in Mississippi. 68 The names of these juvenile perpetrators have fallen into common household usage due to the extensive coverage their crimes received in the media. Such highly publicized and violent incidents, however, do not even remotely represent the common profile of a youthful offender. Such repeated coverage results in strong public reaction, based on an artificially inflated representation of juvenile violence. This immediate and exaggerated attention of the public frequently forces the legislature to address and revise the way in which violent juveniles are treated within the juvenile justice system, with the converse effect of tailoring the punishment of many to the extreme acts of a few. Extremely violent juvenile offenders constitute a small proportion, less than ten percent, of this nation s criminal young. 69 Adding to common misperceptions about juvenile crime, a 1997 study found that viewers of televised news broadcasts often assume that juvenile offenders represented in their stories are either Black or Latino, even where no mention of race is made and no photographs of the youth are shown. 70 Despite such often mistaken presumptions, these young people become the focus of attention of lawmakers who are at work instituting changes within the juvenile justice system. C. Statistics in Juvenile Crime Rates As the decade of the nineties dawned, Florida and New York were still 65. Id. 66. See, e.g., Ellen O Brien, O Brien Guilty, Sentenced to Life Without Parole, BOSTON GLOBE, Oct. 2, 1997, at A See Zachary Dowdy, Who Pulled the Trigger? BOSTON GLOBE, June 21, 1998, at E See id. 69. See Kramer, supra note 22, at A See Dowdy, supra note 67, at A1. In a 1997 study of 214 hours of local television news in California conducted by the Berkely Media Studies Group, 55 percent of stories on youth involved violence, though less than 1 percent of youths are arrested for violent crimes. Black and Latino youths were more than twice as likely as white youths to be interviewed for stories on violence. Id.
11 Fall, 1998] JUVENILE DELINQUENCY 49 leading the nation in overall violence and arrests of people under 18, in spite of their best efforts to stem the tide by issuing more punitive criminal sanctions for a rapidly growing group of youthful offenders. 71 Florida, in fact, was one of the first states to inaugurate automatic transfer policies. 72 Researchers, however, have found that by every scientific measure they used, re-offending was greater among juveniles who were transferred to adult court as opposed to those charged with similar crimes who remained in the juvenile justice system. 73 This finding has led researchers to conclude that automatic transfer in Florida has had little deterrent value, nor has it enhanced public safety. 74 Youth crime, as such, is not exclusively the offender s fault. Offenses by the young also represent a failure of family, school, and society, each of which shares in the responsibility for the development of America s youth. 75 If this is true, what other possible alternatives are there to juvenile crime other than adult incarceration? What today is the plight of these youthful offenders? Hurst, supra note 36, at 35 (citing HOWARD SNYDER & MELISSA SICKMUND, JUVENILE OFFENDERS AND VICTIMS: A NATIONAL REPORT 102 (1995)). 72. Christopher Johns, The Myth of Hard Talk on Juvenile Crime, ARIZONA REPUBLIC, Apr. 9, 1996, at B Id. 74. Id. 75. REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON SENTENCING POLICY TOWARD YOUNG OFFENDERS: CONFRONTING YOUTH CRIME 7 (1978). 76. Depending on the state, a youthful offender is a person statutorily defined as a juvenile who generally may be tried as an adult. The designation given such youth varies, along with their plights, from state to state. New Mexico, for example, defines a serious youthful offender as an individual fifteen to eighteen years of age who is charged with and indicted or bound over for trial for first degree murder; and (B) youthful offender means a delinquent child subject to adult or juvenile sanctions who is: (1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses: (a) second degree murder... ; (b) assault with intent to commit a violent felony... ; (c) kidnapping... ; (d) aggravated battery... ; (e) aggravated battery upon a peace officer... ; (f) shooting at a dwelling or occupied building or shooting at or from a motor vehicle... ; (g) dangerous use of explosives... ; (h) criminal sexual penetration... ; (i) robbery... ; (j) aggravated burglary... ; (k) aggravated arson... ; or (l) abuse of a child that results in great bodily harm or death to the child.... N.M. STAT. ANN (Michie 1978 & Supp 1998). Massachusetts defines a youthful offender as a person who is subject to an adult or juvenile sentence for having committed, while between the ages of fourteen and seventeen, an offense against a law of the commonwealth which, if he were an adult, would be punishable by imprisonment in the state prison, and (a) has previously been committed to