Week 5: Discussion- Justice and Juvenile Justice

Blended Sentencing s and the Punitive
Turn in Juvenile Justice

Shelly S. Schaefer and Christopher Uggen

In many states, young people today can receive a “blended” combination of both a
juvenile sanction and an adult criminal sentence. We ask what accounts for the rise of
blended sentencing in juvenile justice and whether this trend parallels crime control
developments in the adult criminal justice system. We use event history analysis to model
state adoption of blended sentencing laws from 1985 to 2008, examining the relative
influence of social, political, administrative, and economic factors. We find that states
with high unemployment, greater prosecutorial discretion, and disproportionate rates of
African American incarceration are most likely to pass blended sentencing provisions.
This suggests that the turn toward blended sentencing largely parallels the punitive turn
in adult sentencing and corrections—and that theory and research on adult punishment
productively extends to developments in juvenile justice.

INTRODUCTION

During the “get tough” era of the 1980s and 1990s, many US states ramped up

the severity of punishment for both first-time and repeat criminal offenders.

Reforms in the criminal court included three-strike laws, mandatory minimums,

sentencing guidelines, and truth in sentencing legislation (Tonry 1996; Clear and

Frost 2013). Despite the juvenile court’s orientation toward making decisions in the

“best interest of the child,” more punitive policies also began to creep into the

juvenile justice system during this period (Howell 2003, 2008; Ward and Kupchik

2009). Most notably, states began expanding legal mechanisms, such as direct file

transfer and mandatory waiver laws, to transfer adolescents to adult criminal court

(Zimring 1998, 2000; Feld 1999, 2003; Griffin 2003; Kupchik 2006; Steiner and

Wright 2006; Fagan 2008; Johnson and Kurlychek 2012).

Because these legal mechanisms to transfer youth to adult court coincided with

a juvenile crime boom in the late 1980s and early 1990s, such measures generally

met with broad public support. Among persons aged ten to seventeen, the juvenile

arrest rate for violent index crimes nearly doubled between 1984 and 1994, rising

from 279 to 497 per 100,000, before descending to a historic low of 182 by 2012

Shelly Schaefer, corresponding author, is an Assistant Professor in the Department of Criminal
Justice and Forensic Science at Hamline University. She received her PhD in from the
University of Minnesota. She can be contacted at Hamline University, 1536 Hewitt Avenue North,
St. Paul, MN 55124; phone (651) 523-2145; fax (651) 523-2170; [email protected].

Christopher Uggen, PhD, is Distinguished McKnight Professor in the Department of at
the University of Minnesota. He can be contacted at [email protected].

We thank Lindsay Blahnik for her research assistance on this project and four anonymous
reviewers for helpful comments and suggestions on earlier drafts.

VC 2016 American Bar Foundation. 435

& Social Inquiry

Volume 41, Issue 2, 435–463, Spring 2016

(OJJDP 2014). This steep rise perpetuated an image of the “vicious and savvy”

delinquent or “superpredator”—and a corresponding image of the juvenile court as

ill-equipped to punish offenders and deter future crime (Bishop 2000, 84; Feld

1995; Singer 1996; Zimring 1998). The combined effect of moral panic over youth

crime and distrust in juvenile justice was reflected in a 71 percent increase between

1985 and 1997 in youths waived to adult court (Butts 1997).

Even as distrust of the system prompted punitive transfer laws, another juvenile

justice reform was simultaneously taking shape: blended sentencing laws, which

expand sentencing authority by combining a juvenile disposition with a stayed adult

sentence (Griffin 2008). In essence, if the youth fails to abide by the juvenile court

disposition, the court of jurisdictional authority, either criminal or juvenile, can

revoke the juvenile sentence and impose the stayed adult sentence—subjecting the

juvenile to adult prison time.

Considerable debate surrounds the origins and philosophical orientation of

blended sentence policies, in part because they emerged on the scene when legisla-

tors were in dire need of a response to youth violence (Zimring 2014). States

responded by crafting legislation that not only expanded the number of transfer-

eligible youth, but also shifted power from judges and probation staff to prosecutors

via direct file transfer laws (Torbet et al. 1996; Torbet and Szymanski 1998;

Kurlychek and Johnson 2004; Zimring 2014). Direct file laws pacified critics of the

juvenile court who wanted stricter punishments for juvenile offenders, but weak-

ened the court’s long-standing emphasis on amenability to treatment. This shift in

power aligned juvenile court proceedings with a long-standing characteristic of the

criminal court system, prosecutorial discretion based on the charged offense

(Zimring 2005, 2014).

Nevertheless, the question of legislative intent is unclear. On the one hand,

for those concerned about the erosion of the boundaries between the juvenile and

criminal court, blended sentencing could be seen as a means to protect the rehabili-

tative ideals of the juvenile court and provide a “last chance” for juveniles in lieu

of transfer (Feld 1995, 1038). For example, Feld (1995, 966–67) writes that Minne-

sota’s blended sentence law expanded juvenile court jurisdiction, strengthening

rather than weakening the juvenile court during a period in which substantive and

procedural changes had “transformed juvenile courts from nominally rehabilitative

welfare agencies into scaled-down, second-class criminal courts for young people.”

Although that state’s blended sentencing policy may have lengthened dispositions

for those adjudicated delinquent, it also expanded procedural safeguards for youth

in juvenile court, providing access to defense counsel and the right to a jury trial

(Feld 1995). Minnesota’s blended sentencing law thus focused on preserving the

juvenile court’s ability to provide rehabilitative treatment while simultaneously per-

mitting the court, via the expansion of due process safeguards, to enact harsher

punishment.

On the other hand, there is also reason to believe that blended sentencing

legislation is yet another means to expand transfer or criminal sanctioning of youth.

For instance, Dawson’s (1988, 2000, 75) review of the development of blended sen-

tencing legislation in Texas emphasizes a determinate blended sentence structure

that provided “an alternative to expansion of other means of transfer to criminal

436 LAW & SOCIAL INQUIRY

court.” In particular, the determinate sentencing structure would expand the juve-

nile court’s ability to punish youth below the age of fifteen who committed serious

crimes, yet fell below the age of transfer (Dawson 1988). In short, Dawson (1988)

attributes Texas’s blended sentence legislation to concern over youth crime and the

state’s ability to punish, whereas Feld (1995) attributes Minnesota’s blended sen-

tence legislation to a desire to strengthen the juvenile court, while simultaneously

providing procedural safeguards. Although each state has particular juvenile crime

problems and responses, the following study identifies the general patterns that cut

across this local specificity. Before proceeding to an analysis of these shared charac-

teristics, however, we must better situate blended sentencing in the context of the

juvenile court.

JUVENILE COURT HISTORY AND REFORMS

If blended sentence policies represent a departure from the rehabilitative mis-

sion of the juvenile court, it is important to understand what those ideals represent.

Platt (1977) recounts the development of the court, emphasizing the influence of

the US child-saving movement in the middle to late 1800s. During this period, eco-

nomic growth, rapid urbanization, and high rates of immigration transformed views

of childhood (Tanenhaus 2004). Led by middle- and upper-class women, the move-

ment focused on delinquency prevention, the adequate preparation of children,

concern over their idle time, and the threat of their impoverishment (Platt 1977;

Feld 1991). Building on these ideals, the progressives subsequently formalized the

process under which delinquent youth could be rehabilitated in the best interest of

the juvenile and the first official juvenile court opened in Chicago, Illinois in 1899

(Platt 1969, 1977; Schlossman 1977; Feld 1999; Tanenhaus 2004).

An Interventionist and Diversionary Rationale

The juvenile court adopted an explicit interventionist and rehabilitative

rationale, providing positive programming to “protect the community and cure the

child” simultaneously, as the child savers intended (Zimring 2005, 36). Neverthe-

less, Zimring argues that the court’s “diversionary” rationale may have been even

more salient, as the court could shield children from the long-term negative impact

of exposure to criminal punishment and criminal courts (Zimring 2005). According

to this diversionary rationale, the juvenile court was “the lesser of evils” in relation

to the criminal court (Zimring 2005, 41). Diverting youth would, in George

Herbert Mead’s terms, spare youth from the “retribution, repression, and exclusion”

(1918, 590) of the punitive system of justice.

During the 1960s and 1970s, the US Supreme Court and many scholars ques-

tioned whether the juvenile court was in fact rehabilitative and the lesser of two

evils (Feld 1999; Zimring 2005, 41). By 1967, the Court decided In re Gault, which

led to substantial changes in juvenile justice. After reviewing the punitive realities

of the juvenile justice system, the Court mandated elementary procedural safeguards

such as advance notice of charges, the right to a fair and impartial hearing,

The Punitive Turn in Juvenile Justice 437

assistance of counsel, an opportunity to cross-examine witnesses, and privilege

against self-incrimination of juvenile defendants (Feld 1999). Although as Ward

and Kupchik (2009) note, the Supreme Court rulings did not directly challenge the

juvenile court’s mission of rehabilitation, they did require accountability on the

part of justice officials and limited subjective decision making, formalizing juvenile

court processing.

On the heels of the 1960s and 1970s rulings requiring “system accountability” in

the juvenile court (Ward and Kupchik 2009), the late 1970s and 1980s marked a

shift toward individual accountability, offender responsibility, and punitive sanctions

for youth as well as adults (van den Haag 1975; Feld 1999; D. Garland 2001). The

juvenile court was clearly not immune from the punitive turn in criminal justice. If

youth were now more deserving of punishment for their crimes, then legislatures

could enact prosecutorial and programmatic changes that would require them to “deal

with their commitment” of an offense before release (Ward and Kupchik 2009, 103).

Juvenile transfer to adult jurisdiction is regarded as the most punitive response

to juvenile crime. Yet how are we to understand blended sentencing legislation that

seems to merge the juvenile court (as the lesser of the evils) and the criminal court?

Considering the juvenile court’s history and recent reforms, does blended sentenc-

ing legislation represent an attempt to strengthen the juvenile court’s capacity to

intervene in the best interest of the child? Or, does blended sentencing represent a

punitive reform in the juvenile justice system, mirroring punitiveness in the crimi-

nal courts?

For purposes of this study, we are less concerned with the effectiveness or

morality of blended sentencing laws than with their historical, political, and cul-

tural underpinnings. We ask: Does a model that explains the increasing punitive-

ness of adult criminal sanctions also predict the rise of state adoption of blended

sentencing? If so, it would provide evidence that blended sentencing signals a puni-

tive turn toward crime control of juvenile offenders. We will therefore test whether

the known drivers of harsh criminal punishment in the adult system also predict

state adoption of blended sentencing.

The Rise of Blended Sentencing

Blended sentencing emerged almost three decades ago, with West Virginia

being the first US state to adopt the practice in 1985. Texas and Rhode Island fol-

lowed shortly thereafter, but only three states had adopted blended sentencing laws

by 1990. State adoption then rose dramatically from 1994–1997, with twenty-one

states passing blended sentence laws. As shown in Figure 1, over half (twenty-six)

of the fifty states have now adopted a form of blended sentencing. Figure 1 shows

some evidence of geographic clustering, with a majority of states in the Midwest

(75 percent) adopting blended sentencing legislation and relatively few South

Atlantic states (only Florida, Virginia, and West Virginia).1 At first glance, the

1. Overall, state adoption of blended sentencing was fairly equal across states in the West region (50
percent), South (44 percent), and Northeast (36 percent).

438 LAW & SOCIAL INQUIRY

lack of geographic clustering in the South Atlantic states may indicate that blended

sentencing was not considered punitive enough, resulting in a lack of state adop-

tion. Alternatively, it is notable that states with relatively low (Maine and

New Hampshire) and relatively high (Louisiana and Mississippi) incarceration rates

failed to adopt blended sentencing. Such patterns suggest that the blended sentenc-

ing movement is not a simple function of region or punitiveness, although our

multivariate analysis will provide further insight into these factors.

Blended sentencing legislation can be further divided according to which

court—juvenile or criminal—has jurisdiction or sentencing authority. Juvenile

blended sentencing laws in fourteen states allow the juvenile court to impose adult

criminal sanctions on certain categories of crimes. Generally, the court is empow-

ered to combine a juvenile disposition with a suspended adult sentence (Griffin

2003, 2008, 2010). On the other hand, twelve states allow the criminal court to

sentence transferred juveniles to a juvenile court disposition; in some states the

criminal court also suspends the adult sentence in hopes of motivating compliant

behavior (Griffin 2003, 2008, 2010). As explained in the Appendix, blended sen-

tencing legislation can be further divided by sentencing authority into five overlap-

ping models, shown in Table A1 of the Appendix, by state, year of adoption, and

court of jurisdiction.2

The origins of the blended sentencing movement remain an open question.

Some might have championed blended sentencing to moderate the effects of strict

Blended Sentencing States

West

South

Northeast

Midwest

FIGURE 1.
Blended Sentencing in the United States by Census Regional Boundaries (1985–
2008)

2. The Appendix shows that there is no geographical pattern or clustering by year for state adoption
of blended sentencing.

The Punitive Turn in Juvenile Justice 439

state transfer laws (Redding and Howell 2000), shifting potentially adult-certified

youth back to the juvenile court. Other proponents, motivated by the perceived

leniency of the juvenile court, might have intended to subject more youth to adult

criminal sanctions. Still others see the legislative impact of blended sentencing as

part of the power shift in the juvenile court from the hands of the judge to the

prosecutor (Zimring 2005). Yet there is little direct evidence on the relative influ-

ence of such motivations. Moreover, despite calls for more robust attention to

theory in juvenile sanctioning (Mears and Field 2000, 984), most research has

adopted an instrumental cost-benefit framework. While several excellent studies

address the efficacy of juvenile justice reforms (see Redding and Howell 2000;

Podkopacz and Feld 2001; Cheesman et al. 2002; Cheesman and Waters 2008;

Trulson et al. 2011; Brown and Sorensen 2012), such work gives less attention to

the connection between “day-to-day operations” and “an institution’s self-

conceptions” (Garland 1991, 117). To evaluate whether blended sentencing repre-

sents punitiveness in juvenile justice, an affirmation of historic rehabilitative goals,

or a shift to prosecutorial power, we construct and estimate a conceptual model of

its rise and adoption. Following David Garland (1990a, 1991, 124), we draw from

the sociology of punishment traditions of Durkheim, Marx, Foucault, and Elias.

JUVENILE JUSTICE AS PUNISHMENT

Collective Conscience and Changing Sensibilities

Durkheim ([1893] 1933) emphasized the expressive nature of punishment—both

as a representation of society’s moral values and a mechanism to legitimize and reaf-

firm those values (Garland 1990b, 1991). From this perspective, changes in punish-

ment should thus mirror broader shifts in the modern conscience collective

(Durkheim [1893] 1933). If the collective conscience of society has shifted from reha-

bilitative to punitive in its orientation toward juvenile law violation, then what tan-

gible variables account for these changes? In some respects, Michael Tonry applies a

Durkheimian logic in Thinking About Crime, pointing to the “prevailing social values,

attitudes, and beliefs” (2004, 5) driving adoption of punitive sanctions. Recent

research by Enns (2014) supports Tonry by finding that from the mid-1980s to 2009

there was a strong relationship between a rise in public punitiveness and the produc-

tion of punitive policy. Although a limitation of Enns’s study was the inability to

identify specific mechanisms that produced increases in public punitiveness, Tonry

emphasizes media attention and publicity, showing how US sensibilities to get tough

on crime produce punitive policies even in the face of declining crime rates.

As Bernard (1992) reports, public perceptions of youth crime are often unteth-

ered from actual juvenile offending. Thus, an increase in media coverage of a juve-

nile crime wave (Blumstein 1995; Fox 1996) and an explicit focus on high-profile

and exceptionally violent cases (Walker 1994; Tonry 2004, 5) can create moral

panics (Cohen 1972). These panics help shape public attitudes on crime, resulting

in legal changes that encourage harsh punishment. Therefore, following Tonry

(2004), we suggest that increases in public attention to juvenile crime will be

440 LAW & SOCIAL INQUIRY

closely correlated with a state’s adoption of blended sentencing. Unfortunately, we

lack state-level historical information about media or public attention devoted to

youth crime. To test this idea, however, we constructed a variable assessing change

in publicity of delinquency hearings over time, which ranged from generally closed

to generally open to the public.

Although criminal justice policy bears an important relation to levels of crime,

it rarely follows directly from crime rates. For example, Tonry (2004) shows how

crime rates were often declining when punitive policy changes were enacted. Follow-

ing Durkheim ([1893] 1933) and others, the punitive crime control era represents a

change in public sensibilities rather than an instrumental response to rising crime

rates. Nevertheless, to assess how actual crime rates influence the adoption of blended

sentencing, we also estimate the effects of direct measures of juvenile crime, such as

the rate of juvenile arrests by offense type and the rate of youth confinement by race.

Marx and the “Economics and Politics” of Penal Policy

Scholars examining the structural determinants of crime policy often adopt a

Marxian perspective, stressing the interests of the ruling class, which dominates

economic production and imposes power in other social spheres (like politics).3 In

turn, political institutions adapt their conditions (such as punishment and criminal

policy) to fit the dominant economic mode of production (Garland 1990b).

Although Marx wrote little on punishment, scholars in the Marxist tradition have

linked economic production and political ideologies to the introduction or expan-

sion of punishment (Garland 1990b, 1991; Beckett and Sasson 2000).

Rusche and Kirchheimer (1939) built a foundation for research in this tradition,

specifying several propositions relating labor market and class struggles with penal

development. For example, they hypothesized that a surplus of labor led to an increase

in harsh punishment, with elites wielding punishment as a managerial tool tied to the

labor value of prisoners.4 In times of labor surplus and high unemployment, punish-

ments tend to become harsher for individuals (either in terms of physical conditions

or sentence severity). The capitalist elite and their control of the distribution of

resources is only part of Rusche and Kirchheimer’s argument linking labor surplus and

punishment strategies. By controlling the conditions of penal institutions relative to

those of the poor, elites can further dominate the working class. As labor surplus

grows, and with it the incentives to commit crime, punishments are thus stepped up.

Contemporary scholars have modified and tested Rusche and Kirchheimer’s

(1939) labor surplus and punishment theory. Today, labor surplus is typically opera-

tionalized as the unemployment rate, while punishment is operationalized as the

3. Although not all scholars examining the political and economic determinants of criminal policy
use an explicitly Marxist perspective, we focus this brief review on works influenced by Marxist theory. In
doing so, we echo David Garland’s (1990b, 83) contention that Marxist theory has “done the most to
develop a vocabulary within which to express” such political and economic considerations.

4. For Rusche and Kirchheimer, the subject of harsher punishments connotes physically harsher con-
ditions of punishment, while a more contemporary account of harsher punishments represents increase in
use and length of imprisonment (Chiricos and Delone 1992).

The Punitive Turn in Juvenile Justice 441

imprisonment rate (Chiricos and Delone 1992). Although studies by Inverarity and

Grattet (1989), Greenberg (1977), and Jankovic (1977) find a strong positive relation-

ship between unemployment and prison commitments, other studies find little associa-

tion (e.g., Parker and Horowitz 1986) or apparently conflicting evidence (Inverarity

and McCarthy 1988) that varies with model specification and methodological approach

(Sutton 2000). In these instances, even Chiricos and Delone, whose meta-analysis find-

ings generally support the Rusche-Kirchheimer hypothesis, state that “the research has

left many if not most of the key theoretical issues unexamined” (1992, 432).

One of the key critiques of the Rusche-Kirchheimer hypothesis is that it under-

states the importance of political forces that shape legislation of penal measures (Gar-

land 1990b,). Contemporary research in this tradition considers both political and

economic determinants of punitiveness. Most notably, Jacobs and Helms (1996)

report that unemployment is not related to prison admission rates when controlling

for changes in family structure, the percentage of young males in the population, and

crime rates. With regard to politics, however, conservatism is a significant and posi-

tive predictor of punishment. Jacobs and Helms thus find little direct support for the

Rusche-Kirchheimer thesis but greater support for David Garland’s (1990b) and

Savelsberg’s (1994) understanding of the political drivers of criminal punishment.

Similarly, Sutton finds that factors such as unemployment and homicide rates are not

significantly related to imprisonment rates when structural political factors such as

union density and left-party dominance are simultaneously assessed. Strong unions

and left-party influence are significantly and negatively associated with imprisonment

rates, suggesting that democratic parties “exert political influence in support of a

range of ameliorative social policies, including less punitive responses to crime”

(2004, 183). Based on these ideas and findings, we consider both economic measures

(such as unemployment) and political measures (such as partisan legislative and

gubernatorial control) in predicting adoption of blended sentencing.

Apparatuses and Instrumentalities of Punishment for “At-Risk” Populations

David Garland’s sociology of punishment perspective also emphasizes the

“apparatus and instrumentalities” (1991, 124) of punishment, a reference to Foucault’s

(1977, 1978, 1980, 1990) analysis of power relations in the penal process and controls

such as surveillance, inspection, and normalization. Foucault’s approach, moving from

the institution outward, informs diverse theories of the evolving strategies and techni-

ques of the penal field. For example, Feeley and Simon’s (1992, 449) “new penology”

adopts a Foucaultian perspective to describe the emergence of a “new strategic forma-

tion in the penal field.” This involves new discourses, such as the use of actuarial

science and the standardization and use of efficient control mechanisms to target

high-risk groups of offenders. These include fixed sentences and guidelines to deter-

mine sentence type and length,5 pretrial detention, and, more recently, pretrial bail

5. In 1984, the federal government created the US Sentencing Commission to establish uniform or
fixed sentencing guidelines for federal felonies and serious misdemeanors. These guidelines establish pre-
sumptive sentencing criteria for use and adoption by individual states (28 USC 994).

442 LAW & SOCIAL INQUIRY

assessments to estimate risk to public safety (Kempf-Leonard and Peterson 2000;

Mamalian 2011). Feeley and Simon maintain that the expansion of prison and com-

munity corrections (including alternatives such as electronic monitoring and boot

camps) and the use of risk assessments are best understood in terms of “managing

costs and controlling dangerous populations rather than social or personal trans-

formation” (1992, 465). The instrumentalities and apparatuses in the new penology

thus extend the continuum of control to populations deemed most at risk of re-

offense.

Feeley and Simon (1992) do not address whether the new penology and actua-

rial justice has bled into the juvenile system. Kempf-Leonard and Peterson (2000),

however, point directly to developments in the juvenile court that could be attrib-

uted to actuarial justice, which informs our construction of variables to represent

the new penology. For example, greater use of objective risk assessments in juvenile

court parallels the use of prehearing detention to determine actuarial risk in the

adult system.6 States have increasingly adopted the use of detention risk assessments

in juvenile court to identify youths eligible for detainment (Baird, Storrs, and

Connelly 1984; Baird 1985; Frazier 1989; Weibush et al. 1995; Kempf-Leonard and

Peterson 2000; Howell 2003). This process de-emphasizes individual characteristics

and circumstances that could inform the best course of action for each juvenile

and, instead, bases juvenile court decisions on offense severity and risk, which are

markers of actuarial science and risk management. To assess the relationship

between the new penology, community correctional control, and adoption of

blended sentencing, we include measures of youth confinement for pretrial deten-

tion and adults on parole and probation.7

The concept of objective risk assessment is embedded in the criminal justice sys-

tem’s use of sentencing guidelines and truth in sentencing policies. A similar structure

is evolving in the juvenile court via new transfer mechanisms, such as direct file,

that reduce judicial discretion and increase efficiency by standardizing and routinely

processing juvenile cases. Direct file laws allow prosecutors to certify youth directly to

adult court without judicial screening based on standardized criteria. The presumptive

criteria reflect actuarial justice, by defining subpopulations (such as juveniles charged

with specified offenses) as particularly threatening and in need of greater surveillance.

In transferring control to prosecutors, direct file laws arguably save the juvenile court

resources, since the cases that would require the most time and money to resolve are

effectively transferred from the court (Kempf-Leonard and Peterson 2000). To assess

the impact of reduced judicial discretion and the standardization of juvenile process-

ing, we thus consider the effects of a direct file law.8

Finally, Feeley and Simon (1992) argue that the new penology represents a

movement away from moral or clinical descriptions of the individual offender toward

actuarial language that describes risk to public safety. This actuarial language reflects

6. We use the term prehearing and pretrial detention synonymously to represent a judicial hearing to
determine whether a person is detained or released prior to …