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Boston University Law Review


In a context of widespread concern over our bloated criminal justice system and growing awareness of the harm done to individuals and society by our excessive incarceration policies, any piece of the system that has remained infinitesimally small deserves some attention. In her article, The Federal Juvenile System, 1 Esther Hong highlights the success of the largely overlooked federal juvenile delinquency system in staying extremely small and suggests this system offers lessons for its bloated state and federal counterparts. Although I agree that the federal government’s prosecution of minors under the Federal Juvenile Delinquency Act (“FJDA”) offers some valuable lessons in how to design a system that is intended to be extremely small,2 I am not convinced that those lessons translate readily into the broader systems-wide transformation of the carceral state that Hong suggests. Hong nicely demonstrates the usefulness of including internal and external checks on prosecutorial action for imposing constraints. She does not, however, account for the important differences in systems that motivate (or fail to motivate) the imposition of those constraints. Moreover, whether small numbers can be celebrated depends on where the unnumbered offenders go and how they are treated there. A process designed to defer, as the federal process for handling juvenile delinquency offenses is, is only as good at reducing the state’s carceral reach as the system to which it defers.

Hong sets out what we can think of as a two-by-two grid of criminal systems sorted into state and federal rows and adult and juvenile columns. She powerfully notes that where three out of the four quadrants of the grid—federal adult, state adult, and state juvenile systems—have all manifested deep problems associated with excessive exercises of prosecutorial power and punitiveness (I’ll call this the excessive punitiveness problem),3 the fourth quadrant—the federal juvenile quadrant—has avoided these problems to a striking extent. Moreover, she notes that, unlike the federal adult system that has been sharply criticized for its disruptive impact on its state adult counterparts (I’ll call this the federalism problem), the federal juvenile system has avoided this disruptive effect on the state juvenile systems.4 These distinctions are true and important. But a fuller account of how and why the federal prosecution of minors has avoided these problems is necessary to properly consider the lessons that can be drawn from this success. After setting out the history and implementation of the state and federal approaches to minor offending with an emphasis on aspects most relevant to my analysis, I will turn to a consideration of the lessons Hong derives from the federal government’s approach to juvenile delinquency. In closing, I will suggest, briefly, that the real lessons that can teach us how to reform our criminal legal system as a whole come not from the federal juvenile quadrant, but from the state juvenile quadrant, to which the federal system is designed to defer.

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