Juvenile Justice in Minnesota:  Framework for the Future

Professor Barry C. Feld

Barry C. Feld is Centennial Professor of Law at the University of Minnesota Law School, where he has taught since 1972.  He has received numerous awards,  written eight books and more than seventy articles on juvenile justice administration with a special emphasis on serious young offenders, procedural justice in juvenile court, and youth sentencing policy. He has also served on the Minnesota Juvenile Justice Task Force and the Minnesota Supreme Court’s Juvenile Court Rules of Procedure Advisory Committee.

            Over the past four decades, judicial, legislative, and administrative changes have transformed the juvenile court from a nominally rehabilitative social welfare agency into a scaled-down, second-class criminal court for youths that provides neither therapy nor justice.  The Supreme Court in Kent v. United States, 383 U.S. 541, 556 (1966), observed that “juvenile justice” is an oxymoron:  “the child receives the worst of both worlds:  he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”  Since the Supreme Court in In re Gault, 387 U.S. 1 (1967) mandated some procedural safeguards in delinquency adjudications, there has been a substantive and procedural convergence between juvenile and criminal courts.  But even as delinquency sanctions have become more punitive, juvenile courts provide a procedural regime under which few adults charged with a serious crime would consent to be tried.

            At the beginning of the twentieth century, economic modernization fostered rapid industrialization, immigration, and urbanization.  Social changes altered family structure and function and promoted a newer cultural construction of childhood as a period of innocence and vulnerability.  The Progressive movement emerged to address the host of problems associated with social change, combined their belief in state power with the newer conception of childhood, and enacted a number of child-centered reforms – juvenile courts, child labor laws, welfare laws, and compulsory school attendance laws (Feld 1999).  During this period, positive criminology supplanted classical explanation of crime as the product of free-will choices.  Reformers attributed criminal behavior to deterministic forces, deemphasized individual responsibility, employed medical analogies to treat offenders, and focused on efforts to reform rather than to punish them.  Juvenile courts melded the new vision of childhood with new theories of social control, introduced a judicial-welfare alternative to the criminal justice system, and enabled the state, as parens patriae, to monitor ineffective child-rearing.  Juvenile courts emphasized reform and rehabilitation, used informal procedures, excluded lawyers and juries, conducted confidential hearings, and adopted a euphemistic vocabulary.  Judges imposed indeterminate and non-proportional sentences to secure juveniles’ “best interests” and future welfare rather than to punish them for their past offenses.

            Minnesota joined the nationwide movement and enacted its first juvenile court legislation effective June 1, 1905.  Initially, the law to “regulate the treatment and control of dependent, neglected, and delinquent children” applied only to children under the age of seventeen years.  Reflecting the breadth of legislative concerns, the original act defined a “delinquent child” as any child who

violates any law of this state or any city or village ordinance; or who is incorrigible; or who knowingly associates with thieves, vicious or immoral persons; or who without just cause and without the consent of its parents or custodian absents itself from its home or place of abode; or who is growing up in idleness or crime; or who knowingly frequents a house of ill fame; or who knowingly patronizes any policy shop or place where any gaming device is or shall be operated; or who frequents any saloon or dram shop where intoxicating liquors are sold, or who patronizes or visits any public pool room or bucket hsop; or who wanders about the streets in the night time without being in any lawful business or occupation; or who habitually wanders about any railroad yards or tracks or jumps or hooks on to any moving train or enters any care or engine without lawful authority; or who habitually uses vile, obscene, vulgar, profane or indecent language; or who is guilty of immoral conduct in any public place or about any school house. 

The legislation’s purpose clause further provided that it should be “liberally construed” to ensure “That the care, custody and discipline of a child shall approximate as nearly as may be that which should be given by its parents, and in all cases where it can properly be done, the child to be placed in an approved family home and become a member of the family by legal adoption or otherwise.”  Amendments to the Juvenile Code effective January 1, 1918, raised the age of delinquency jurisdiction to children under eighteen years of age, closed delinquency proceedings to the public, provided confidentiality for court records, and expanded juvenile courts’ purpose to ensure that they “act upon the principle that to the child concerned there is due from the state the protection and correction which he needs under the circumstances disclosed in the case. . .”

            In 1967, the Supreme Court in In re Gault concluded that most states’ juvenile court procedures violated the Constitution and required a substantial overhaul.  Gault identified two crucial disjunctions between juvenile justice rhetoric and reality:  the theory versus the practice of rehabilitation and the differences between the procedural safeguards available to criminal defendants and to delinquents.  The Court required juvenile courts to use “fundamentally fair” procedures which included advance notice of charges, a fair and impartial hearing, the assistance of counsel, an opportunity to confront and cross-examine witnesses, and the privilege against self-incrimination.  Although the Court based delinquents’ rights to notice, counsel, and confrontation on generic notions of due process and “fundamental fairness” under the Fourteenth Amendment rather than the specific requirements of the Sixth Amendment, it explicitly relied on the Fifth Amendment to grant delinquents the privilege against self-incrimination.  As a result, juvenile courts’ proponents no longer could characterize delinquency adjudications as either “non-criminal” or “non-adversarial.”  In subsequent decisions, the Court further equated criminal and delinquency proceedings.  In In re Winship, 397 U.S. 358 (1970), the Court required states to prove delinquency “beyond a reasonable doubt,” rather than by the lower, civil “preponderance of the evidence” standard of proof.  The Court reasoned that while parens patriae intervention may be a laudable goal to deal with miscreant youths, “that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law and to the possibility of institutional confinement on proof insufficient to convict him were he an adult.”  397 U.S. at 367.  However, in a plurality decision that produced five separate opinions, the Court in McKeiver v. Pennsylvania, 403 U.S. 528 (1971), declined to grant delinquents all of the procedural safeguards of adult criminal trials.  Although the Court in Duncan v. Louisiana, 391 U.S. 145 (1968), previously had held that the Sixth Amendment right to a jury trial applied to state criminal proceedings, McKeiver insisted that “the juvenile court proceeding has not yet been held to be a ‘criminal prosecution,’ within the meaning and reach of the Sixth Amendment, and also has not yet been regarded as devoid of criminal aspects merely because it usually has been given the civil label.” 403 U.S. at 541.  McKeiver held that the constitution did not require jury trials in state delinquency trials because “due process” required only “accurate fact-finding,” which a judge could do as well as a jury.  The McKeiver plurality denied that delinquents required protection from the State, invoked the imagery of the paternalistic juvenile court judge, ignored the jury’s crucial role in upholding Winship’s standard of “proof beyond a reasonable doubt,” and rejected concerns that juvenile courts’ closed hearings could prejudice the accuracy of fact finding.  McKeiver emphasized the adverse impact that jury trials could have on the informality, flexibility, and confidentiality of juvenile court proceedings.

            Gault and its progeny transformed the Progressives’ conception of the juvenile court as a social welfare agency into a second-class criminal court for juveniles.  Progressive reformers intervened on the basis of a child’s “real needs” and viewed proof of a crime as secondary.  Although McKeiver denied delinquents the right to a jury trial, Gault and Winship imported the adversarial model, attorneys, the privilege against self-incrimination, and the criminal standard of proof.  By adopting some criminal procedures, the Court shifted the focus of the juvenile court from “real needs” to proof of criminal acts and formalized the connection between criminal conduct and coercive intervention.  Although the Court did not intend to preclude juvenile courts’ rehabilitative agenda, judicial and legislative changes have fostered a procedural and substantive convergence with criminal courts.  Constitutional theory, states’ delinquency laws, and actual practices continue to provide juveniles with “the worst of both worlds.”  Youths receive fewer and less adequate procedural safeguards than do adult criminal defendants, especially the right to a jury and access to effective assistance of counsel.  Despite these deficiencies, once states provided delinquents with even a semblance of procedural justice, they more readily departed from a rehabilitative model and adopted “get tough” policies.  Although racial inequality provided the initial impetus for the Court’s focus on juveniles’ procedural safeguards, granting delinquents some rights legitimized the increasingly punitive, “get tough” penalties that now fall most heavily on minority offenders (Feld, 2003).

            Since 1980, the Minnesota legislature and Supreme Court have adopted laws and rules of procedure that have fostered a criminalizing of juvenile justice.  On the one hand, the explicit endorsement of punishment as an element of juvenile sentencing policy in Minnesota repudiates juvenile courts’ original postulates that children should be treated differently than adults and contradicts McKeiver’s assumptions that delinquents require fewer procedural safeguards than do adult criminal defendants.  At the same time, many juveniles do not receive even the limited procedural safeguards that Gault envisioned (Feld 1989; 1993).  Although juvenile courts increasingly converge with criminal courts, Minnesota does not provide youths with either procedural safeguards equivalent to those of adult criminal defendants, or with special procedures that more adequately protect them from their own immaturity.  Instead, state laws and judicial opinions place juveniles on an equal footing with adult criminal defendants when formal equality acts to their detriment, and employ less effective juvenile court procedures when they provide the state with an advantage (Feld, 1984; 1989; 1995).

            In 1980, the Minnesota legislature significantly amended and modified a number of interrelated provisions of the juvenile code – changes directed at serious young offenders, the certification process, and the interface between juvenile and criminal court sentencing practices (Feld, 1981).  The legislature repudiated its earlier “rehabilitative” commitment to provide “care and guidance . . . as will serve the spiritual, emotional, mental and physical welfare of the minor and the best interests of the state” and redefined the purpose of juvenile courts.  For delinquents charged with criminal misconduct, the purpose of the juvenile court is “to promote the public safety and reduce juvenile delinquency by maintaining the integrity of the substantive laws prohibiting certain behavior and by developing individual responsibility for lawful behavior (Minn. Stat. § 260.011(2)(1980); Feld, 1981).”  The legislature enacted a presumption in favor of waiver to criminal court for older juveniles charged with various combinations of present offense and prior record (Minn. Stat. § 260.125 (3)(1980); Feld, 1981).  Although Minnesota’s juvenile courts conducted hearings informally and without a jury, the new law required them to adhere to the criminal rules of evidence in delinquency and certification proceedings (Minn. Stat. § 260.155(1)(1980); Feld, 1981).  Significantly, the 1980 legislature also adopted the Minnesota Sentencing Guidelines for adults that required judges to base decisions whether or not to imprison and the length of the sentence primarily on the seriousness of the present offense and prior record.  In calculating an adult offender’s prior criminal record, the sentencing guidelines mandated the partial inclusion of juvenile offenders’ felony offense history and required judges to sentence youths transferred for prosecution as adults under the same presumptive guidelines applicable to adult offenders (Feld, 1981).  Finally, the Minnesota Department of Corrections administratively implemented determinate parole release guidelines based on a committed juvenile’s present offense and prior record (Feld 1981).  Cumulatively, these changes shifted focus from the offender to the offense and began a substantive convergence between the juvenile and criminal justice systems.

            In 1983, the Minnesota Supreme Court replaced an urban- and rural-county patchwork of rules with one set of statewide rules to govern juvenile court proceedings (Feld, 1984).  The new rules responded to Gault’s requirements for greater procedural formality and marked a further criminalizing of juvenile courts.  However, the Court made a number of policy decisions to provide delinquents with less adequate safeguards than those afforded criminal defendants.  In every instance in which the Court had an opportunity to recognize youths’ immaturity and vulnerability and to provide them with more effective procedural safeguards than those afforded criminal defendants, the Court treated juveniles just like adults.  Conversely, in every instance in which the court had an opportunity treat delinquents at least as well procedurally as criminal defendants, it adopted juvenile court procedures that provided less effective safeguards (Feld, 1984).  As a result, juveniles in Minnesota continued to receive “the worst of both worlds.”  For example, when Gault granted delinquents the privilege against self-incrimination, the procedural safeguards developed in Miranda v. Arizona, 384 U.S. 436 (1966), also became available to juveniles.  Allowing juveniles to waive their Miranda rights and their right to counsel under the adult standard of “knowing, intelligent, and voluntary” under the “totality of the circumstances” is an example of formal equality producing practical inequality.  Developmental psychologists long have recognized that juveniles – especially those younger than sixteen years of age – lack the understanding, maturity, judgment, experience and competence to exercise legal rights on a par with adults (Feld, 2006).  Despite youths’ limitations, the Minnesota Court repeatedly has rejected appeals for additional procedural safeguards, such as the presence of a parent during interrogation, and instead endorsed the adult waiver standard (Feld, 1984; 2006).  On the other hand, the legislature and Court adhere to McKeiver and continue to deny delinquents the right to a jury trial that adult criminal defendants enjoy.  The denial of a jury right affects many other aspects of juvenile justice administration as well (Feld, 1984; 2003).  Trial judges and juries apply Winship’s standard of proof “beyond a reasonable doubt” differently and, as a result, it is easier for the state to convict delinquents in juvenile courts than it is to convict adults in criminal courts (Feld, 2003).  Despite that, the Minnesota Supreme Court allows the state to include those procedurally deficient delinquency convictions in the criminal history score to enhance the sentences of adult offenders.  State v. McFee, 721 N.W.2d 607 (MN. 2006).  The McKeiver plurality denied delinquents a jury trial because it feared that juries would bring to the juvenile system “the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial.”  403 U.S. 528 (1971).  Illustrating the punitiveness and procedural schizophrenia of juvenile justice, the 1986 legislature opened delinquency hearings to the public of juveniles sixteen years of age or older and charged with a felony level offense while simultaneously denying them the right to a jury trial.  Minn. Stat. § 260.155 Subd. 1(c) (1986).  

            Although Gault likened the seriousness of a delinquency proceeding to a felony prosecution, Minnesota’s use of the adult waiver standard – “knowing, intelligent, and voluntary” under the “totality of the circumstances” – to gauge juveniles’ waivers of the right to counsel has denied many juveniles effective assistance of counsel (Feld, 1989; 1993).  Research conducted in the late-1980s reported that a majority of juveniles who appeared in juvenile courts lacked the assistance of counsel.  One-third of juveniles removed from their homes and nearly a quarter of delinquents confined in institutions were not represented by counsel at their delinquency adjudications (Feld, 1989; 1993).  Moreover, despite statewide laws and procedural rules, juvenile justice administration varied widely throughout the state.  Judges in different locales appointed counsel, detained, and sentenced youths very differently and provided “justice by geography” (Feld, 1991; 1993).  Judges in urban counties appointed counsel for delinquents more than twice as often as did rural judges; the majority of youths in rural counties charged with felony offenses lacked representation (Feld, 1991; 1993).

            In addition to geographic disparities, research reports substantial racial disparities in juvenile justice administration (Feld 1989; 1993).  Both nationally and in Minnesota, studies consistently report racial disparities in detention, sentencing, and waiver decisions by juvenile court judges (Feld, 2003).  After controlling for the seriousness of the present offense and prior record, juvenile court judges are more likely to transfer minority youths than similarly-situated white youths to criminal court (Feld 2003).  Empirical evaluations of juvenile court delinquency sentencing practices report two consistent findings.  First, the ordinary principles of the criminal law – present offense and prior record – explain most of the variance in how juvenile court judges sentence delinquents.  Because the state defines delinquency jurisdiction based on a child committing a criminal act, judges’ sentencing practices focus primarily on the seriousness of the present offense and prior record.  Secondly, after controlling for offense variables, juvenile courts consistently produce racial disparities in pre-trial detention and sentencing (Feld 1999; 2003).  Black youths engage in higher rates of violent offenses and use of firearms than do white juveniles and this accounts for some of the racial differentials in sentencing (Feld 1999).  Part of the differences in rates of offending by race is attributable to differential exposure to risk factors associated with crime and violence – poverty, segregation and cultural isolation in impoverished neighborhoods, lack of access to health care, and the like – and a “culture of the street” within some urban settings which exacerbates youth violence (Feld 1999; 2003).  Regardless of the causes of crime, no society and, especially the law-abiding victims within the affected communities, can tolerate youth violence.  But, justice system responses may aggravate the cumulative disadvantage of minority youths.  Research consistently reports that even after controlling for variables such as the seriousness of the offense and prior record, judges detain and sentence minority youths at higher rates than they do white youths (Feld 1999, 2003).  In a society marked by economic and racial inequality, minority youths are most “in need” and therefore most “at risk” for juvenile court intervention.  The structural context of juvenile justice places minority youths at a dispositional disadvantage.  Urban juvenile courts are procedurally more formal and sentence all delinquents more severely.  Urban courts have greater access to detention facilities and juvenile court judges sentence detained youths more severely than those who remain at liberty.  Because proportionally more minority youths live in urban counties, the geographic and structural context of juvenile justice administration interacts with race to produce minority over-representation in detention facilities and correctional institutions (Feld 1989; 2003).  The Minnesota Council on Crime and Justice (2006) reported that the Hennepin County Juvenile Detention Center detained disproportionately more black juveniles for all forms of violations – new offenses, warrants, and arrest and detention orders – and for longer periods than their white counterparts.  The Minnesota Supreme Court Task Force on Racial Bias in the Judicial System (1993) reported substantial disparities in Minnesota’s juvenile justice system in rates of detention and out-of-home placement of minority youths compared with white juveniles charged with similar offenses and prior records.  The Race Bias Task Force also reported substantial geographic disparities in detention and sentencing that compounded racial disparities. 

            In 1995, the Minnesota legislature enacted a comprehensive package of law reforms that fostered even greater substantive and procedural convergence between juvenile and criminal courts (Feld 1995).  In the early-1990s, increases in youth violence and homicide, especially within the urban black male population, provided impetus nationwide and in Minnesota to “get tough” and “crack down” on juvenile crime (Feld 1999; 2003).  The 1995 amendments used the offense criteria of the adult sentencing guidelines to make it easier to waive juveniles to criminal court and excluded from juvenile court jurisdiction youths sixteen years of age and older charged with first-degree murder (Feld 1995).  Once the state tries youths in criminal court, judges sentence them as if they were adults and impose mandatory sentences of life imprisonment on youths as young as fourteen or fifteen years of age without any recognition of youthfulness as a mitigating factor.  State v. Mitchell, 577 N.W.2d 481 (MN. 1998).  Most significantly, the legislature enacted a blended sentencing law – Extended Jurisdiction Juvenile (EJJ) prosecution – through which the state tried youths in juvenile court with adult criminal procedural safeguards including the right to a jury trial and imposed both juvenile dispositions that continued until age twenty-one and a stayed adult criminal sentence (Feld 1995).  Although the legislature intended EJJ to provide judges with a stronger juvenile treatment alternative to waiver, the law instead had a substantial “net-widening” effect; judges continued to waive the same numbers and type of youths that they had transferred previously and revoked the probation and executed the adult sentences of nearly one-third of EJJ youths, many of whom were younger and first-offenders (Podkopacz and Feld, 2001).  Most of those youths, judges previously had decided should not be waived and many of them had their probation revoked for technical violations rather than new offenses.  In addition, the legislation expanded and extended the use of delinquency convictions in the criminal history score to enhance the sentences of adults.  As a result, waived juveniles and young adult offenders may receive substantially longer sentences based on delinquency convictions obtained without the right to a jury trial (Feld, 1995; 2003).  In addition to increasing juvenile courts’ sentencing powers, the new legislation also strengthened provision for appointment of counsel (Feld 1995).  Although the Minnesota legislature and Supreme Court long had recognized that only half of juveniles received assistance of counsel, earlier proposals to expand delivery of legal services foundered.  The 1995 code required judges to appoint counsel for all youths charged with a felony or gross-misdemeanor offense or in which out-of-home placement is contemplated (Feld 1995).  Despite these changes, rates of representation of juveniles remain lower than those of adults charged with comparable offenses.  And, the legislature again declined to provide delinquents charged with crimes the right to a jury trial.  

            The juvenile court in Minnesota today is a very different one from that envisioned a century ago.   There has been a substantial convergence between the sentencing policies and procedures of the juvenile and criminal justice systems.  And, in the contemporary juvenile court, youths continue to receive “the worst of both worlds . . . neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”  A study conducted by the Legislative Auditor of Minnesota’s state-run institutions and largest private programs reported very high rates of recidivism and concluded that “Minnesota’s most-used residential programs have shown a limited ability change entrenched criminal values and behavior patterns among juveniles” (Feld 1995).  Minnesota’s legislation, judicial opinions, and juvenile justice practices emphasize the greater role of punishment.  This is reflected in the juvenile code purpose clause, judges sentencing practices of ordinary delinquents, the greater use of the adult sentencing guidelines to structure prosecutorial decision-making, waiver and EJJ decisions, and the expanded role of delinquency convictions in the adult criminal history score (Feld 1995).  Notwithstanding McKeiver’s fond hopes, juvenile courts’ trials simply replicate those of criminal courts, albeit with fewer, less adequate procedural protections.  The denial of a right to a jury trial affects every other aspect of juvenile justice administration – adherence to the criminal standard of “proof beyond a reasonable doubt,” access to and the performance of counsel, the timing of evidentiary hearings, and the like.  Minnesota denies delinquents jury trials in an increasingly punitive juvenile justice system and then compounds that inequity when it uses those nominally rehabilitative sentences to extend terms of adult imprisonment.  Finally, criminal courts sentence youths tried as adults without any formal recognition of youthfulness as a mitigating factor in sentencing.  And all of these consequences fall disproportionately heavily on minority youth (Feld 1999; 2003).

            Confronted with Minnesota juvenile courts’ punitive sentencing practices, Judge Gary Crippen, in In re D.S.F., 416 N.W.2d 772 (Mn. Ct. App. 1987), posed three plausible policy options:

1.  [T]he juvenile delinquency systems could be “restructured to fit their original [rehabilitative] purpose.”

2.  [W]e can . . . embrac[e] punitive dispositions as an acceptable and inherent part of delinquency proceedings, but call[] upon the Minnesota Legislature and the Minnesota Supreme Court to extend to accused juveniles all procedural safeguards guaranteed for adults in criminal cases.  Most critically, we could assert the demonstrated need for jury trials in accusatory proceedings where juveniles may be incarcerated, and the additional need for representation by competent counsel in every case where a juvenile is faced with incarceration.

3.  [W]e could call for dismantling a system that openly exacts from our younger citizens a sacrifice of liberties and gives in return a false promise to serve the best interests of those who come before it.  The federal and state constitutions do not permit a criminal justice system without criminal procedural safeguards.

Two decades later, we face the same issues of procedure and substance against the backdrop of an even more punitive juvenile justice system in which youths continue “to receive the worst of both worlds.”  As long as juvenile courts operate in a societal context that does not provide adequate support and services for children in general, intervention in the lives of those who commit crimes inevitably will be for purposes of crime control, rather than for social welfare.  Addressing the “real needs” of young people – social welfare, family assistance, health, housing, nutrition, education, segregation, and poverty – requires a public and political commitment to the welfare of children that extends far beyond the resources or competencies of any juvenile justice system.

References

Council on Crime and Justice.  August, 2006.  “An Analysis of Racial Disproportionality in Juvenile Confinement:  An Analysis of Disproportionate Minority Confinement in the Hennepin County Juvenile Detention Center.”

Barry C. Feld, “Juvenile Court Legislative Reform and the Serious Young Offender:  Dismantling the ‘Rehabilitative Ideal’,” 65 Minnesota Law Review 167 (1981).

Barry C. Feld, “Criminalizing Juvenile Justice:  Rules of Procedure for the Juvenile Court,” 69 Minnesota Law Review 141 (1984).

Barry C. Feld, “The Right to Counsel in Juvenile Court:  An Empirical Study of When Lawyers Appear and the Difference They Make,” 79 Journal of Criminal Law & Criminology 1185 (1989).

Barry C. Feld, “Justice By Geography:  Urban, Suburban, and Rural Variations in Juvenile Justice Administration,” 82 Journal of Criminal Law & Criminology 156 (1991).

Barry C. Feld, Justice For Children:  The Right to Counsel and the Juvenile Courts (Boston:  Northeastern University Press 1993).

Barry C. Feld, “Violent Youth and Public Policy:  A Case Study of Juvenile Justice Law Reform,” 79 Minnesota Law Review 965 (1995).

Barry C. Feld, Bad Kids:  Race and the Transformation of the Juvenile Court (New York:  Oxford University Press 1999).

Barry C. Feld, “The Constitutional Tension Between Apprendi and McKeiver:  Sentence Enhancements Based on Delinquency Convictions and the Quality of Justice in Juvenile Courts,” 38 Wake Forest Law Review 1111 (2003).

Barry C. Feld, “Race, Politics, and Juvenile Justice:  The Warren Court and the Conservative ‘Backlash’,” 87 Minnesota Law Review 1447 (2003).

Barry C. Feld, “Juveniles’ Competence to Exercise Miranda Rights:  An Empirical Study of Policy and Practice,” 91 Minnesota Law Review 26 (2006).

Marcy Rasmussen Podkopacz and Barry C. Feld, “The Back-Door to Prison:  Waiver Reform, >Blended Sentencing,= and the Law of Unintended Consequences,” 91 Journal of Criminal Law and Criminology 997 (2001).