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A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a "fatal lottery," with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County-the state's largest county and location of the nation's fifth largest city-were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo's appeal. What the Arizona Supreme Court conceded, and what the evidence showed, was the expansive criteria for death eligibility made it impossible for states to "perform the 'constitutionally necessary' narrowing function at the stage of legislative definition" to prevent "a pattern of arbitrary and capricious sentencing.

A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a "fatal lottery," with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County—the state's largest county and location of the nation's fifth largest city—were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo's appeal. What the Arizona Supreme Court conceded, and what the evidence showed, was the expansive criteria for death eligibility made it impossible for states to "perform the 'constitutionally necessary' narrowing function at the stage of legislative definition" to prevent "a pattern of arbitrary and capricious sentencing." Nearly fifty years ago, in Furman v. Georgia, the U.S. Supreme Court cited these same conditions as violating the Eighth Amendment's cruel and unusual punishment clause to rule the nation's death penalty statutes unconstitutional. This overbreadth is exactly the opposite of the constitutional requirements set forth over fifty years ago in Furman and four years later in Gregg, seminal U.S. Supreme Court decisions that changed the landscape of capital punishment and created the architecture of the modern death penalty. These cases sought to avoid not only arbitrary but racist outcomes by narrowing capital punishment to a very small subset of cases.

In Mapp v. Ohio, the U.S. Supreme Court extended the due process protections of the exclusionary rule to include all "constitutionally unreasonable searches" that were done without a basis of probable cause. In the seven years after Mapp, when homicide rates in the U.S. nearly doubled, riots broke out in at least forty-seven U.S. cities. During the same era, a heroin epidemic gripped the nation's urban centers, giving rise to street drug markets and associated violence and pressures on law enforcement to curb those markets. As violence increased, a turn in the nation's political culture questioned Mapp's restraints on police discretion to stop and search criminal suspects. Indeed, some writers wondered if the Mapp standard, with its reliance on the exclusionary rule to deter violations of Fourth Amendment rights, had inflicted social costs on the public through over-deterrence of police, leading to elevated crime rates. It was no surprise, then, that after those seven years the Supreme Court in Terry v. Ohio "uncoupled … the two clauses of the Fourth Amendment" that regulated temporary detentions and searches by police. Terry dealt with a different "rubric of police conduct": the beat officer stopping and patting down an individual on the street, more commonly known as an "investigative stop." The Terry test was (and is) thus to balance the scope of the intrusion against the "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Justice Douglas, in dissent, labeled this "reasonable suspicion." Although intended to be a narrow departure from Mapp's standard, it was in fact a big break from Mapp. The Court said that the Mapp rule simply did not fit the realities of street policing in an era of rising crime rates.

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime. The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the competing interests of public safety and the possibility of rehabilitating young offenders. This authority has now been usurped by legislators and prosecutors. The recent changes in state law have moved large numbers of juveniles into the adult system. As many as 25 percent of all juvenile offenders younger than eighteen, says Fagan, are now prosecuted in adult court. Many live in states where the age boundary between juvenile and criminal court has been lowered to sixteen or seventeen. The key policy question is: do these new transfer laws reduce crime? In examining the research evidence, Fagan finds that rates of juvenile offending are not lower in states where it is relatively more common to try adolescents as adults. Likewise, juveniles who have been tried as adults are no less likely to re-offend than their counterparts who have been tried as juveniles. Treating juveniles as adult criminals, Fagan concludes, is not effective as a means of crime control. Fagan argues that the proliferation of transfer regimes over the past several decades calls into question the very rationale for a juvenile court. Transferring adolescent offenders to the criminal court exposes them to harsh and sometimes toxic forms of punishment that have the perverse effect of increasing criminal activity. The accumulating evidence on transfer, the recent decrease in serious juvenile crime, and new gains in the science of adolescent development, concludes Fagan, may be persuading legislators, policymakers, and practitioners that eighteen may yet again be the appropriate age for juvenile court jurisdiction.

Rising juvenile crime rates over three decades spurred legal mobilizations within many state legislatures to vastly expand the transfer of adolescent criminal offenders under the age of eighteen to the jurisdiction of the criminal court. The proliferation of transfer regimes over the past several decades calls into question the very rationale for a juvenile court. Both the boundaries for transfer and mechanisms to effect it were redesigned. This redrawing of the boundary between the juvenile and adult justice systems resulted in a wholesale movement of large numbers of juveniles into the adult system, while stripping juvenile court judges of the discretion to make retail individualized assessments of culpability and dangerousness. About one in four juvenile offenders below the age of 18 now are prosecuted in adult court, most of whom are excluded from juvenile court in states where the age boundary between juvenile and criminal court has been lowered to sixteen or seventeen. The legislative line drawing process assumes that modern adolescent offenders are now criminally culpable and more dangerous at younger ages than they were in the past. These developments are challenged by evidence from developmental science about the capacities of minors for emotional regulation and behavioral control. The article examines the legal architecture and institutional design of the new boundary-drawing regime and assesses its instrumental and expressive effects, and estimates its effects on public safety and the allocation of punishments. Nearly all studies, across a range of sampling and measurement conditions, produce strong evidence that rates of juvenile offending are not lower in states where it is relatively more common to try adolescents as adults. Transferring adolescent offenders to the criminal court exposes them to harsh and sometimes toxic forms of punishment that have the perverse effect of increasing criminal activity. Juveniles who have been tried and sentenced as adults are more likely to re-offend, more quickly and for more serious offenses, than their counterparts who have been tried as juveniles. The criminalization of adolescent crime is an ineffective and dangerous means of crime control that may actually compromise public safety. Individualized and neutral decision making and greater regulation of eligibility can reduce and mitigate the excessive reach of modern transfer laws while preserving the important legitimating functions of waiver.

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime. The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the competing interests of public safety and the possibility of rehabilitating young offenders. This authority has now been usurped by legislators and prosecutors. The recent changes in state law have moved large numbers of juveniles into the adult system. As many as 25 percent of all juvenile offenders younger than eighteen, says Fagan, are now prosecuted in adult court. Many live in states where the age boundary between juvenile and criminal court has been lowered to sixteen or seventeen. The key policy question is: do these new transfer laws reduce crime? In examining the research evidence, Fagan finds that rates of juvenile offending are not lower in states where it is relatively more common to try adolescents as adults. Likewise, juveniles who have been tried as adults are no less likely to re-offend than their counterparts who have been tried as juveniles. Treating juveniles as adult criminals, Fagan concludes, is not effective as a means of crime control. Fagan argues that the proliferation of transfer regimes over the past several decades calls into question the very rationale for a juvenile court. Transferring adolescent offenders to the criminal court exposes them to harsh and sometimes toxic forms of punishment that have the perverse effect of increasing criminal activity. The accumulating evidence on transfer, the recent decrease in serious juvenile crime, and new gains in the science of adolescent development, concludes Fagan, may be persuading legislators, policymakers, and practitioners that eighteen may yet again be the appropriate age for juvenile court jurisdiction.

In 2005, the U.S. Supreme Court in Roper v. Simmons (125 S. Ct. 1183) banned executions of persons who commit capital murder before they reach age 18. Roper overturned death sentences for 72 people in 18 states (Streib, 2005). Most (but not all) were resentenced to natural life or life in prison without the possibility of parole (or JLWOP). Juvenile justice advocates now want to extend Roper's maturity heuristic, proportionality analysis, aversion to errors, and deference to international laws and norms to argue for a constitutional ban on natural life sentences for adolescent offenders. This move could have a far greater reach than did Roper, potentially affecting more than 2,250 inmates in 42 states. But extending Roper raises difficult normative, constitutional and policy questions. Does the Roper logic fit when the crime is other than murder? When the sentence is less than death? A retreat from natural life sentences requires a confrontation in state legislatures with three decades of increasingly harsh punishment legislation aimed at juvenile offenders, and with its underlying fear-driven instinct to remove serious youthful offenders categorically and permanently from our midst. The policy options and mobilization strategies to counter this trend emerge not only from Roper's jurisprudence but also from the coupling and alignment of natural life sentences with a broader discourse on the principles of juvenile justice and youth policies.