Document Type

Article

Publication Date

2009

Keywords

juvenile justice, Jena 6, prosecutorial discretion, Warren court

Subject Category

Civil Rights and Discrimination | Criminal Law | Juveniles | Law

Abstract

This article describes the origins and impact of two modern reforms that dramatically rewrote the law governing the prosecution of juvenile offenders: the Warren Court’s due process decisions and the juvenile justice legislation of the 1990s. Beginning with the prosecution of Mychal Bell, who was one of the Jena 6, the article provides a broader historical and analytical framework to assess the procedural protections available to juveniles charged with serious offenses, particularly the adequacy of the remedies to challenge prosecutorial discretion and disparate treatment by the prosecution.

The article first describes the key role race played in the Warren Court’s jurisprudence and in the adoption of later state reforms of the juvenile justice system, and then turns to an assessment of the impact of those developments. It comes to several conclusions. First, despite the Warren Court’s general concern with racial equality, race was almost entirely absent from the Court’s criminal procedure opinions, and those rulings have surprisingly little to offer for defendants such as the Jena 6. Second, the statutory reforms of the 1990s were adopted in a legislative frenzy whipped up by politicians and news media that exaggerated the prevalence of juvenile crime, depicted minority youths as the perpetrators, and created the frightening specter of a new breed of superpredators. Not surprisingly, the resulting reforms made the system more punitive, but they also shifted the discretion to treat juveniles as adults from the courts to prosecutors.

Finally, the article concludes that the absence of judicial review or oversight of discretionary decisions by the prosecutor, and others such as such as police and probation officers, is especially troubling because of mounting evidence that racial imagery, stereotypes, and prejudice affect the multiple discretionary judgments that are made in the juvenile justice system. Neither the federal constitution nor state law provides judicial oversight or review.