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November 27, 2013

"Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing"

The title of this post is the title of this notable new paper by Samantha Buckingham now available via SSRN. Here is the abstract:

Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants.  Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources.  These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society.

Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices.  This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders.

The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes.  Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate.  This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts.  Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in.  A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.

November 27, 2013 at 10:12 AM | Permalink


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At best, some kids get better no matter what is done or not done. Rehab is a joke to them.

Posted by: Supremacy Claus | Nov 27, 2013 1:24:20 PM

"developmental science breakthroughs..."

And those would be?

Posted by: Steve Erickson | Nov 27, 2013 1:28:42 PM

You are 13. You do as you please. You make $1000 a week, to help your family. You go parties, smoke dope, have sex with 15 year old hussies, several times a week. If someone offends you, you hold your Glock sideways, and blast away, enjoying yourself.

Now say again that stuff about rehab and restorative justice, cause I wasn't listening well. How does any program short of the death penalty influence such an individual?

Posted by: Supremacy Claus | Nov 27, 2013 5:09:29 PM

You are 16, have girl friend and a child. This last year you grossed $2 million stealing cars on consignment from Newark airport for car body shops. You have been arrested, but the jail is full and you have been told to return to one when an opening comes up. Yoyu were referred to one of the above programs, but every day you are not working costs you $10,000. What will you do?

Posted by: Supremacy Claus | Nov 27, 2013 5:28:28 PM

The above characters are not only real people, but they are quite common.

Posted by: Supremacy Claus | Nov 27, 2013 5:32:15 PM

All of the posts above are things we'd rather not hear, but, regrettably, they're true.

Academics need to get their heads out of the clouds.

Posted by: Bill Otis | Nov 28, 2013 1:07:50 AM

SC --

You ask, "How does any program short of the death penalty influence such an individual?" Unfortunately, even the death penalty won't influence him because he's confident that he's too smart to get caught. He doesn't worry about what would happen to him if he got caught 'cause in his mind, it ain't gonna happen.

This false sense of immunity isn't unique to juveniles, although statistically it may be more prevalent among them because they're less likely to have been caught in the past and more likely to think they have superhuman abilities.

Posted by: arfarf | Dec 1, 2013 10:42:15 AM

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