Nora V. Demleitner

Reforming Juvenile Sentencing

The tragedy of Littleton, Colorado, where two high school students killed a number of their classmates and a teacher, before killing themselves, is the most deadly of a string of recent school shootings. Unlike any similar event, it has sparked a national dialogue on violent youth crime. How can it be prevented? Who is responsible for youth crime ? families, schools, the entertainment industry, the juvenile justice system? Once juveniles commit criminal offenses, what should society do to rehabilitate and reintegrate them while protecting the lives and property of those around them? Congress is currently considering a juvenile justice bill, introduced by Senator Orrin Hatch, that promises states funding in exchange for enacting harsher juvenile sentencing laws, requires the creation of a national database for juvenile offenders, and mandates the U.S. Sentencing Commission to develop juvenile sentencing guidelines. The national focus on juvenile crime caused FSR to turn its attention to juvenile sentencing. This Issue show cases a number of approaches ? state and international?to the sentencing of juveniles. It also presents several thought-provoking pieces on how to structure juvenile guidelines, should they become part of the new Commissions agenda.

Challenge, opportunity and risk: an era of change in comparative law

dual function explains the power of law to challenge the status quo and to bring about change. Often law operates as a societal change agent when society has reached a new level of awareness and understanding of itself and others. Comparative law is particularly well positioned to operate as a constructor and a reflector of legally clothed societal values. This dual role constitutes its strength and produces its danger. At present, comparative law faces a dual challenge to its relevance. At home it has to confront a potential disintegration of the field which results from the vacuum created by the absence of a clear purpose and the attempt on the part of the adherents of newer jurisprudential theories to fill the gap through the use of their methodologies in explaining foreign legal systems. In its study of foreign legal cultures, comparative law runs the risk of misinterpreting legal phenomena because of its use of non-reflective, domestically contingent methodologies that superimpose our value judgments upon other legal cultures, and therefore often conceal rather than illuminate different approaches to law. Both challenges, however, encompass great opportunity and the possibility for a more nuanced understanding of ourselves and others.

Challenges for the Enforcement and Effectiveness of Criminal Law: The Prohibition on Illegal Drugs

An assessment of the effectiveness of criminal law requires an initial discussion of what this concept means and what challenges the enforcement of criminal laws presents. In general, cost and effectiveness of criminal laws are difficult to ascertain. This holds particularly true for laws criminalizing activities relating to illicit drugs, such as their production, trafficking, possession, and consumption. With expectations of enforcement success often only ambiguously defined, costs insufficiently compiled, and the collateral effects of enforcement more damaging than the public health impact, drug law enforcement appears highly ineffective. This holds true for European countries as well as the United States. The enforcement of drug laws therefore remains of questionable value and may even negatively impact the standing of criminal law in its entirety.

Overlooked Areas of Federal Sentencing: Federal Enclaves, Indian Country, Transfer of U.S. Prisoners From Abroad

m Wim drug and immigration offenses crowding / \ / \ Congressional federalization of large numbers of street crimes,n not much attention has / \ / \ been paid to sentences for offenses committed in geographic enclaves over which the federal / \ / \ government has traditionally exercised jurisdiction. These territories include Indian Country, / \ / \ federal parks, military installations, federal buildings, and other areas over which the federal ^mmk^ JeaHg^ government exercises exclusive (or, in limited cases, concurrent) jurisdiction. ^^BOp^^ ^^fmWf^ This FSR Issue is devoted to these often overlooked crimes and offenders. It discusses dflflHSfe some of the unique jurisdictional issues present in these cases, such as the determination of ^^KTHm^^ whether the area on which the crime was committed is in fact a federal enclave, focuses on the problems arising from the application of federal guidelines to ordinarily state-type offenses involving Native Americans and addresses the special topic of sentence calculations when American prisoners are transferred from other countries pursuant to treaties to serve foreign sentences in American prisons.

Stopping a Vicious Cycle: Release, Restrictions, Re-Offending

his Issue addresses a problem that is now receiving heightened attention: the reentry of incarcerated offenders into their communities and legal and practical obstacles to JL their successful reintegration. Almost 500,000 inmates are released from state pris ons every year. Many of them are insufficiently supervised upon release; a substantial number will find themselves back in prison within a short period of time. Because of the harm such a cycle inflicts upon the individuals and the communities from which they hail, a number of public and private organizations are now addressing how to assist ex-offenders upon their release while guaranteeing public safety. The growth of the incarcerated population in the last two decades has made the question of reentry increasingly pressing. Two million offenders are incarcerated in local, state and federal institutions across the country. Various organizations are studying the obstacles ex-offenders face, designing pro grams to remedy some of the most glaring hurdles and administrative deficiencies, and devel oping legislative and judicial strategies to limit the negative consequences of restrictions on ex-offenders while providing incentives for them not to re-offend. Involved in this new approach are governmental units such as the U.S. Department of Justice and its National Institute of Justice (nij), private research organizations such as the Vera Institute of Justice and the Open Society Institutes Center on Crime, Communities and Culture, and state agencies such as the New York State Task Force on Parole. The Criminal Justice Section of the American Bar Association has been working on a draft resolution urging reconsideration of statutory collateral consequences in light of the desirability of reintegrating offenders into society. Some groups provide funding and coordination for reentry projects while others lobby for different approaches. The articles here focus on two aspects of life after imprisonment: First, Marc Mauer and Robert Musser each talk about different sets of legally imposed collateral consequences. Mauer highlights the disenfranchisement of ex-offenders ? 3.9 million Americans are cur rently denied the right to vote. How many suffer from employment restrictions or the denial of welfare benefits remains unknown because of the panoply of federal and state limitations on the social, political and economic rights of ex-felons. These officially decreed effects of a criminal conviction, which are the focus of Robert Mussers article, may cause reintegration problems for offenders upon release, and perpetuate their stigmatization as ex-offenders. Whether they serve any salutary benefit as incentives or deterrents depends on the type of restriction and on the individual offender. Second, Laurie Robinson and Jeremy Travis focus on practical obstacles offenders face upon discharge. They describe the recently established reentry court and reentry partnership initiatives sponsored by the Department of Justice. Both initiatives are based on the assump tion that reentry poses criminal justice, public health and economic challenges. The present situation bears out these considerations: Almost two-thirds of all ex-offenders convicted in state court are rearrested within three years of their release, and one-third return because of parole violations. To assist offenders in readjusting to life after prison and to reduce re-offend ing, communities and governmental agencies must develop collaborative strategies with grad uated sanctions and built-in incentives. Offenders have always faced detrimental consequences upon release. They have encoun tered societal prejudices and stigma. Private employers are frequently reluctant to hire ex-con victs. State and federal governments have imposed a panoply of legal barriers upon them, To assist offenders in readjusting to

Editor's Observations CRIME AND SENTENCING IN CANADA: PARALLELS AND DIFFERENCES

In this Issue FSR casts its gaze more widely than usual and examines the sentencing system across our northern border in Canada. Comparative research is nothing new in that country, report Anthony Doob and Julian Roberts, for Canadians have long taken advantage of their front-row seats to study the experiments and innovations of our fifty states and federal government. Public policy makers in the United States are less accustomed to drawing on the experiences of other countries, even neighbors so near as Canada. That provincialism is unfortunate because the basic similarities of culture, demographics, and crime give each country much to learn from the other. Our contributors, all deeply immersed in Canadian sentencing, paint a fascinating portrait of their system and of the larger political scene in which it operates. Many elements of the picture look familiar, such as Allan Mansons report that incar ceration rates continue to climb just as crime has dropped. Other elements may appear surprising, such as his observation that, two decades after Canadas abolition of capital punishment, fewer murders are committed than ever. To situate us in this unfamiliar terrain, Allan Manson offers a short overview of Canadas criminal

Editors' Observations: The Intertwined Problems of Immigration and Sentencing

crimes, whether they be in this country legally or illegally. In recent years, Congress and the states have responded to public concern about immigrant crime with a series of legislative programs and enforcement projects. The Anti-Terrorism and Effective Death Penalty Act (AEDPA), which became law on April 24, 1996, and the immigration bills currently pending before Congress, are only the latest examples of these undertakings. Given the complexity of the issues, and the passions stirred by them, one may reasonably question the Congresss ability to address them in a coherent and rational manner in an election year. This special Issue of FSR seeks to shine some light on this rapidly changing field of law?a field that has too long been neglected by most mainstream federal practitioners. The observations of the Issues participants?prosecutors, academics, and defense attorneys?suggest that this shadowy area of the law deserves, at minimum, detailed attention and considerable reform.