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Beyond “Children Are Different”: The Revolution in Juvenile Intake and Sentencing

Abstract: For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases—when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted rather than diverted, and when and for how long they may be incarcerated or kept on probation based on the specific offense alleged or adjudicated.

These reforms are a sharp turn for juvenile law. Contrary to the field’s long emphasis on discretionary decisions not legally tethered to specific offenses, the reforms depend on the charges alleged or proven against a child, and limit judges’ authority at disposition and prosecutors’ at intake.

This Article fills a gap in the academic literature, which has previously focused on recent reforms to criminal, not juvenile, court sentencing of children. Recent juvenile court reforms prevent prosecutors and judges from using wide discretion to incarcerate children for petty offenses, follow social science research demonstrating how overly punitive actions undermine rehabilitative goals, and provide important checks and balances on what are often the most important decisions in individual cases. These juvenile court reforms also enhance the importance of plea bargaining, and thus risk creating the same harms as have been documented with plea bargaining in the criminal justice system. This Article argues that risk is mitigated by limitations on prosecutors’ leverage and that future reforms should include further checks on that leverage.

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