Summer 2010

The contradictions of juvenile crime & punishment

Jeffrey Fagan

Jeffrey Fagan is Professor of Law and Public Health at Columbia University and Director of the Center for Crime, Community, and Law at Columbia Law School. His recent publications include “Street Stops and Broken Windows Revisited: Race and Order Maintenance Policing in a Safe and Changing City” (with Amanda Geller and Garth Davies), in Exploring Race, Ethnicity, and Policing: Essential Readings (edited by Stephen K. Rice and Michael D. White, 2010); “Crime and Neighborhood Change,” in Understanding Crime Trends (edited by Arthur S. Goldberger and Richard Rosenfeld, 2008); and “Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities” (with Tracey Meares), Ohio State Journal of Criminal Law (2008).

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration1–orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy-security measures–others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

However, like its adult counterpart, juvenile corrections, whether located in a human warehouse or a therapeutic community, is designed mainly to control its residents and restrict their personal freedoms. Movement and association are intensively regulated; outside contact with family, friends, and intimate partners is attenuated and used as an incentive for good behavior; access to media and culture is restricted; privacy is nonexistent; and choice of clothing, language, and other modes of personal expression is off-limits. Whatever developmental importance these forms of self-expression and self-determination may have for adolescents, it is sacrificed to the primary goals of security, control, discipline, and punishment. Most important, at either end of the continuum of institutional climate, the options of solitary confinement, physical restraint, or other forms of extreme deprivation exist to control the defiant and unruly or to punish wrongdoing. Accordingly, the naming conventions for these juvenile facilities are deceptive: these are not “training schools” or “centers” or any other kind of school or academy, nor are they “homes.” These are correctional facilities whose primary purpose is to punish.

One would expect such institutions to be reserved for those who are most deserving of punishment or those who pose a nontrivial risk to public safety. But under the enduring doctrine of parens patriae,2 we incarcerate children for a mixed bag of rationales, ones that do not always comport with the punitive dimensions of juvenile incarceration. Parens patriae obligates the court to act beyond the need simply to protect children from the harms of noxious social circumstances or to avail them of developmental and material supports that their families have failed to provide. The doctrine allows– .  .  .


  • 1Sharon Dolovich, “Incarceration: American Style,” Harvard Law & Policy Review 3 (2009): 237.
  • 2Parens patriae is a doctrine commonly associated in both policy and law with the rights and obligations of the state and courts toward children and incapacitated adults. The diminished competence and autonomy of children is the court’s justification for invoking parens patriae to supplant parental authority and assert control over children. See Julian Mack, “The Juvenile Court,” Annual Report of the 32nd Conference of the American Bar Association (1909), 451.
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