Legal Commentary

Thursday morning at Law & Society there will be a book panel on Christopher Slobogin & Mark Fondacaro's forthcoming book "Juveniles at Risk: A Plea for Preventive Justice."  (A precursor article in appeared in the Iowa Law Review and is available on SSRN).  Slobogin & Fondacaro's book is in step with aspects of the Supreme Court's recent opinion in Graham v. Florida, although the Court based its decision on traditional penological theories of deterrence and retribution, while Slobogin & Fondacaro argue for a new preventive model in juvenile court.

In Graham, the Court focused heavily on kids' ability to grow and change.  "By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person's value and place in society," Justice Kennedy wrote.  "What the State must do . . . is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."

In their book, Slobogin and Fondacaro do not rely solely on "diminished retribution theory," which they identified with earlier Supreme Court cases, most notably Roper v. Simmons.  "Dimished retribution," they write, is too "easily characterized as merely a softer version of adult court."  Nor do they rely wholly on a rehabilitative model, which they criticize as too tied to the welfare state, and insufficiently focused on reducing crime.  Instead they focus on preventing future crime. 

Slobogin & Fondacaro argue that their preventive model holds the possibility of building non-ideological alliances and reducing crime, while avoiding both extremes of open-ended parens patriae intervention and heavy reliance on transfer to adult court.  Author Slobogin and readers will discuss the project Thursday at LSA.