Featured Scholarship: The New Rehabilitation

Dan Filler has co-authored a new article, The New Rehabilitation, that will appear in Volume 91 of the Iowa Law Review.  Filler's scholarship focuses on the social production of law.  In this article he challenges the common notion that juvenile courts have lost their rehabilitative focus.  Filler and his co-author, Austin Smith, describe how judges, lawyers, and court personnel created rehabilitative "specialty courts" that have "transformed American juvenile justice policy from the ground up." 

You can check out the abstract below or download the article from SSRN. 

    

According to the standard account offered by most progressive observers of the juvenile courts, the goal of rehabilitation has virtually disappeared. While America's juvenile courts were explicitly designed to treat and rehabilitate children, these critics argue that these goals have been abandoned for a more punitive agenda. Most observers blame the demise of the rehabilitative ideal on the criminal procedural revolution of the Warren Court. In this narrative, the Court's well-intentioned decision to provide children constitutional safeguards unwittingly undermined the unique flexibility of the juvenile courts. Thus, the downfall of progressive juvenile justice policy provides yet another example of the conservative political backlash to 1960's liberalism.

The problem with this accepted history is that it is seriously incomplete. Rehabilitation remains vibrant in many juvenile courts throughout the country. This article exposes an important development in how America addresses juvenile crime: specialty courts. Drug courts, gun courts, mental health courts, and other tribunals all target offenders whose lives can be reclaimed through intensive intervention. Hundreds of such programs exist nationwide, including at least one in every state, transforming the experience of justice for tens of thousands of children. These courts are the product of local judges and other juvenile court regulars, rather than legislative edict.

Why are people ignoring this explosive rebirth of the rehabilitative ideal? It appears that scholars are looking in the wrong place to determine the nature of juvenile justice policy. The academic community has long assumed that these agendas are drawn up by legislatures, and implemented by local court officials. But as this paper explores, ordinary court functionaries - trial judges, lawyers, and other employees seeking to solve practical problems on the local level - have subverted the popular get-tough legislative agenda, and implemented their vision of sound juvenile punishment. We analyze these employees through the lens of political science literature about street level bureaucrat. We show that these individuals, motivated by a variety of things - ranging from personal policy preferences to self-interest - have actually transformed American juvenile justice policy from the ground up.