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The juvenile court of today, often referred to as a quasi-criminal court, is seen primarily as a slightly less severe version of the adult criminal court. It exists to hold youth accountable for offenses committed while still offering some semblance of rehabilitation or treatment. Like adults, we speak of these juveniles as being arrested and sentenced. However, their sentences are typically less onerous than those imposed on more mature and culpable adult offenders by the criminal court. In reality, however, there are many more differences between the two systems of justice than a mere mitigation of punishment, not the least of which are their underlying purposes and origins. Indeed the seeds of the juvenile court were sown in social welfare and not the criminal justice system. The catalyst of its creation was not to merely modify the adult court, but rather to provide an entirely separate system of justice for juveniles that was not based on punishment at all, but rather treatment and rehabilitation. Youth were viewed as being different than adults because they were but “potential” adults. It was to be the experiences of these formative years that would determine who they would only later become as adults. Thus, keeping adolescents, even those committing serious offenses, away from more hardened adult criminals and providing them with education and treatment services was seen as the moral obligation of society to produce the next generation of upstanding citizens. It was from this sense of civic responsibility and “moral” obligation that a juvenile court was to be born.
The following sections will present the historical facts leading up to the establishment of the nation’s first juvenile court, trace the evolution of the court over time and space, and place the events of modern times in their historical context.
Before The Juvenile Court
In early America the colonies were settled by groups of people who shared similar ethnic origins and homogenous religious beliefs. In these small communities, it was easy to maintain order as everyone had a role to play and shared values that assisted the community in enforcing norms without the need for much outside formal intervention. However, as America and its cities began to grow, large influxes of immigrants changed the landscape of America. Known as the “melting pot,” the historical image often presented is one of these groups coming together and melting into a harmonious society which benefited from the unique contributions of its various members. In reality, cities grew in pockets as settlers from different nations huddled together for security and protection from the unknown others (e.g., in New York City still today there exist areas such as Chinatown and Little Italy). In addition, with the diversity brought by the new immigrants, American cities also became a host for other social ills at the center of which was abject poverty.
As the immigrant families struggled to find the land of opportunity they were promised, their children also suffered. There was not a formal public educational system or compulsory attendance laws as there are today, so many adolescents simply gathered together in groups to form what might be known as the earliest youth gangs. Because of the difficulty finding jobs and the low wages paid to many of these workers when they did find jobs, it became more common for these youth to beg for money, play instruments, or perform on street corners for change and even pickpocket or steal. Violent crime, while less prominent, still existed as mistrust bred conflict between citizens from various ethnic and religious backgrounds.
When a youth was arrested for one of these behaviors, the most typical blanket charge was “disorderly conduct.” Brought before an adult court judge, the choice was then for the court to simply do nothing with the youth or place him in an adult jail/lock-up facility. Both options proved problematic. To do nothing was to send a message to the youth that he/she could simply get away with it. This would then promote further deviant and criminal behavior because no consequences were experienced for negative behaviors. On the other hand, to take a youth and place him/her in adult jails with hardened criminals was to expose that youth to more criminogenic ideas and behaviors, also leading to further criminality.
This problem was first formally addressed by the Society for the Prevention of Pauperism. This Society, which was established in 1817 by two prominent Quakers, Thomas Eddy and John Girscom, indeed defined the problem not as juvenile crime, but rather as pauperism, that is, people who were poor because they never learned a good work ethic or were ridden with other social ills such as alcoholism that prevented them from becoming productive adults. Because such people were often confined in poor houses or prisons, the first report of this Society issued in 1818 focused on the conditions in New York City’s penitentiaries. A second report released a year later drew attention to the fact that there were no separate facilities for juveniles in these penitentiaries. This was followed by a third report, written by Cadwallader Colden, mayor of New York City, who concluded that such confinement of youth with adult criminals was harmful because the penitentiary was “a fruitful source of pauperism, a nursery of new vices and crimes, a college for the perfection of adepts in guilt” (Pierce 1969).
The fourth report, issued in 1822, took one step further, recommending the establishment of an entirely separate penitentiary for juveniles. In addition, since this facility was envisioned by the society for the prevention of pauperism, it was designed so that its focus was not upon punishment, but rather the reform of these young offenders through the provision of a good education and a strong work ethic.
Early Institutions For Juvenile Offenders
In 1825, New York opened the first such institution called the House of Refuge. As noted, this was not to be a place of punishment, but rather of reform. Youths sent here were to find refuge from the negative influences in their homes or on the streets that were leading them down the wrong path, that of an adult pauper or criminal. Based on the concept that delinquency was related to poverty, these institutions thus adopted several practices from poor houses as well. First, these juveniles were not sentenced for a certain length of time proportionate to their offense, as in criminal courts. Rather, boys were committed until their 21st birthday and girls until their 18th birthday (this was later amended to be the same as the boys) (Bernard and Kurlychek 2010). Second, commitment to the institution did not require a criminal conviction. A city alderman could simply issue an order admitting the youth, or a parent could apply to the board of the House of Refuge. As such, it is not surprising that this institution received few, if any, youths who would have been sent to an adult penitentiary. For example, in its first year of operation, the New York House of Refuge received 73 children (Fox 1970). Of these, 63 had been sent for either vagrancy, running away from a poorhouse, or stealing. If the House of Refuge did not exist, these youth would most likely have had no intervention because of the adult court judges’ reluctance to lock up these children with adult offenders (Pierce 1969). Finally, also consistent with the practice in poorhouses was the heavy emphasis on work. Commentators on the children in the House of Refuge emphasized the connection between idleness and temptation.
The idea of the House of Refuge spread quickly. A second house was established in Boston in 1826 (1 year after the first one in New York) and a third in Philadelphia the following year. As these houses grew so did questions about their operation, particularly the practice of holding children who had committed no offense other than being poor. Once such challenge came before the Pennsylvania State Supreme Court concerning a young girl, Mary Ann Crouse.
Like many others, she had not committed any criminal offense, but was a poor child who appeared to be in danger of growing up to become a pauper. On the complaint of her mother, she was brought into court and committed to the House of Refuge. Her father objected to this and filed a writ of habeas corpus (a legal demand for the state to explain why it is holding someone). This case raised a crucial legal issue: that there should be no punishment unless a crime has been committed. Thus, this case argued that the House of Refuge was a form of punishment, and therefore, it was not right to hold a child in its grasp who had committed no such offense.
In 1838 when the Court handed down its final decision in this case, it would, however, disagree. The Court rejected the father’s arguments and held that sending Mary Ann to the House of Refuge was perfectly legal because it was not punishment. The Court reasoned as follows:
The object of the charity is reformation, by training its inmates to industry; by imbuing their minds with principles of morality and religion; by furnishing them with means to earn a living; and, above all, by separating them from the corrupting influence of improper associates. To this end, may not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriae, or common guardian of the community?… The infant has been snatched from a course which must have ended in confirmed depravity; and not only is the restraint of her person lawful, but it would be an act of extreme cruelty to release her from it. (Mennel 1973, 22–23)
This case is important for two primary reasons. First, it held that the purpose of the institution was in fact charity, thereby confirming its roots in social welfare rather than criminal justice. Second, it borrowed from an English doctrine used in chancery rather than criminal courts to validate the role of the state in holding such children. This doctrine, parens patriae, allowed the state to act as the parent or guardian when the natural parent was unable to do so. Originally intended for use only when children were orphaned, the Pennsylvania Supreme Court clearly extended the reach of such a doctrine to hold to children whose parents were still alive, but not raising their children in a manner seen as fit by the state.
This was not to be the last word on the matter, however. The House of Refuge movement continued to spread with over 40,000–50,000 youths having been confined in these houses by 1868. As the Houses became more crowded, other problems ensued as well. It was harder to control the behavior of inmates, which led to strict disciplinary practices. It also became more and more difficult to find jobs for these children upon release, leading them to simply be sent back to their homes. As such, the practices of the Houses, rather than merely their charitable roots, came into question, leading to a second challenge to their power. In this second case, the parents of Daniel O’Connell, similar to the father of Mary Ann Crouse, filed a writ of habeas corpus challenging the right of the state to hold their son, who had committed no criminal offense, in such an institution. This case, originating in Chicago, went before the Illinois Supreme Court. In a finding contrary to that of the earlier Crouse case, this Court found that commitment to the House of Refuge did constitute punishment as follows:
Can the State, as parens patriae, exceed the power of the natural parent, except in punishing crime? These laws provide for the “safe keeping” of the child; they direct his “commitment” and only a “ticket of leave” or the uncontrolled discretion of a board of guardians, will permit the imprisoned boy to breathe the pure air of heaven outside his prison walls….The confinement may be from one to fifteen years, according to the age of the child. Executive clemency cannot open the prison doors for no offense has been committed. The writ of habeas corpus, a writ for the security of liberty, can afford no relief, for the sovereign power of the State as parens patriae has determined the imprisonment beyond recall. Such restraint upon natural liberty is tyranny and oppression. (Platt 1977, 103–104)
Thus, this case ended with the Illinois Supreme Court ordering Daniel released to his parents. According to the argument presented by Bernard and Kurlychek (2010), the different finding was not based on different practices or circumstances between the two cases, rather it was based upon the court’s decision to focus on actual practice in the later case rather than “good intentions” as in the former case.
The First Juvenile Court
Despite this seemingly final decision by the state court, the sentiment behind the creation of the Society for the Prevention of Pauperism and these early institutions had not changed. This sentiment was that a growing portion of the nation’s children, particularly those in urban centers, were in need of help.
While the first juvenile institutions reviewed above had been founded by men, the first juvenile court was to be largely the result of the work of women. Although women typically did not have political power at this time, the fact that these women were addressing the care of children, a typical female concern, allowed then entrance into an otherwise male realm of influence. Also, these women were the wives and daughters of prominent and powerful men who ran Chicago’s political and business establishments – in other words, they “had connections.” Like their husbands and fathers, these women were wealthy, white, Anglo-Saxon, and Protestant. According to Anthony Platt’s classic work, “The Child Savers” (1977), these women had the sense that their culture and way of doing things was indeed superior to other cultures and races and wanted to instill their values into the next generation of youth.
Despite their desire to “help,” these women had no clear path to do so. For the greater part of the previous century, youth were able to be removed from their homes without question and put in institutions designed to “help” them. Now, thanks to the O’Connell decision such a practice was illegal. While juveniles who committed serious crimes could still be brought before the adult court and put in institutions, for most juveniles who were committing minor acts of delinquency, the choice was again to do something that seemed too harsh (lock them up with adult criminals) or something too lenient (to let them off scot free).
For example, Julia Lathrop, who was later Chief of the Federal Children’s Bureau, reported that in the 6 months prior to the establishment of the first juvenile court, 332 boys between the ages of 9 and 16 were sent to the city prison in Chicago (Lathrop 1912). Of that number, 320 were sent on a blanket charge of “disorderly conduct,” which could represent a variety of offending behaviors from very trivial to fairly serious. About one-third of these were pardoned by the mayor, meaning the ultimate outcome was to again do nothing. So it was that the officials in Chicago were faced with the same dilemma that led to the creation of the House of Refuge only 75 years earlier. Not surprisingly then, much of the rhetoric of the time mirrored that put forth by the Society for the Prevention of Pauperism. For example, the previous report by Julia Lathrop went on to argue the following:
There are at the present moment in the State of Illinois, especially in the city of Chicago, thousands of children in need of active intervention for their preservation from physical, mental and moral destruction. Such intervention is demanded, not only by sympathetic consideration for their well-being, but also in the name of the commonwealth for the preservation of the State. If the child is the material out of which men and women are made, the neglected child is the material out of which paupers and criminals are made. (Lathrop 1912, 4)
Such advocacy by the Child Savers ultimately resulted in the Illinois Conference of Charities voting to recommend the establishment of a separate court for juveniles. The idea, suggested by Frederick Wines, one of the most prominent penologists in the country, quickly gathered support, and on January 1, 1899, a juvenile court law was enacted unanimously by the Illinois Legislature. This new court, built on charity rather than principles of justice, was designed to serve the best interests of the child and society. For these reasons it did not look like a criminal court, but more closely resembled a chancery court. Because chancery court was intended to help children who lacked proper parental care, this model fit the goals of the child savers well. It allowed them to intervene again in the lives of “needy” children even if a crime was not committed and without the due process protections provided in adult court. Indeed, drawing on the early Crouse decision handed down from the Pennsylvania Supreme Court, the new juvenile court was to be based on the parens patriae doc trine and to serve “in the best interests” of the child.
To establish a juvenile court as a chancery court required two separate steps: Jurisdiction over juveniles had to be (1) removed from criminal court and (2) established in the new juvenile court. The process of the new court was then to be confidential, informal, and ultimately beneficial to the child. Because it was not a criminal court, not only did due process protections not apply, but neither did standard criminal justice terminology such as being tried, found guilty, and sentenced. Instead these juveniles were “taken into custody” by the state. A social history was to be prepared by a case worker, a role originally taken by social workers that would later evolve into juvenile probation. This social history was not to focus on a specific offense committed, although that was indeed part, but included interviews with family members, friends, educators, and the like. If it was determined that official court intervention was needed, a petition was filed asking the court to hear the case. At this stage, however, many youth were handled informally and services given without further need for official declaration of delinquency. In some cases, however, the youth would be adjudicated delinquent by the juvenile court judge.
Similar to being found guilty in adult court, adjudication indicates that there was evidence that the youth was involved in some act of delinquency or a status offense. However, being a civil court, the standard of proof was preponderance of the evidence (51 %) instead of proof beyond a reasonable doubt which is the criminal court alternative. Also, an adjudication of delinquency implied something else: that the youth was in need of care and treatment. This later part often outweighed consideration of evidence that any offense was committed. After all, if the ultimate goal of this new court was to help needy youth, it would be much better to provide services to a youth in need before things were to become worse. Upon adjudication, the juvenile court judge was then to determine a disposition crafted in the best interests of the child. Thus, it was not a punishment for the offense committed (if any) but a treatment plan. This disposition stage in juvenile court was to be very different from sentencing in adult court, where punishments were administered that were proportional to the offense committed.
To keep the process informal, no lawyers were present at proceedings, just the juvenile, the probation officer or case worker, the juvenile’s parents, and the juvenile court judge. All records were confidential to protect the youth from being stigmatized or labeled as a delinquent in the community. Moreover, to avoid the youth internalizing any feelings of being a hardened criminal, youth were not fingerprinted, photographed, or otherwise processed in the formal ways of an adult offender.
The juvenile court was seen as a success, and variations of this model were adopted in many jurisdictions across the nation, with all 50 states and the District of Columbia enacting official juvenile court systems by the mid-1900s.
Challenges To The Court
As the juvenile court evolved, considerable focus was placed on keeping these juveniles away from adult offenders in placements similar to the earlier House of Refuge movement. Many jurisdictions enacted cottage systems which were to provide small homelike environments for these youth. But as the court grew, so did its clientele, and again, overcrowding led to the development of large state-run institutions that more resembled prisons than a “home.” As the “beneficial” nature of these institutions came into question, so eventually did the informal nature of the court and its seemingly unyielding power to confine youth for extended periods of time with little to no evidence of any wrongdoing by the child.
The time period of the 1960s was characterized by great social change. Many challenges were brought before the nation’s courts addressing violations of citizens’ rights and liberties. The new juvenile court was not to be immune. It was during this same time that the first formal challenges to this new system of justice were to be heard by the nation’s highest court, the United States Supreme Court. The case of Morris Kent was the first in a series of five cases often lumped together under the terminology “the due process movement.” In this case, Kent was accused of very serious charges including several counts of breaking and entering, burglary, and rape. Based on the serious nature of the charges and Kent’s history with the juvenile system, the juvenile court judge had decided to waive the case to adult court without a formal hearing. It was the informality of the juvenile court judge’s procedure that was brought into question before the Supreme Court. After reviewing the facts of the case and the juvenile court statute of the District of Columbia (the court of original jurisdiction), the Court determined that waiving a juvenile to adult court without a formal hearing and the right to an attorney was indeed a violation of the due process protections provided by the United States Constitution. While this decision was rather narrow, focusing on the juvenile court statute of the District of Columbia and addressing only one decision point – the waiver decision – its message was clear: The Supreme Court was now willing to address issues of due process in the nation’s juvenile courts.
The next case to reach the Court, In re Gault, was to delve much deeper into the core of the juvenile court and its informal practices. In this case a young boy of 15, Gerald Gault, had been accused of making a prank phone call. Without notice of charges or notice to his parents, he was taken into custody. Gerald admitted to dialing the number but indicated that his friend had made the lewd comments on the phone. The victim, Mrs. Cook, did not appear in court or give testimony against Gerald. Yet, he was adjudicated delinquent and committed to the state’s Industrial School until his 21st birthday. While he probably would not have been held nearly this entire time, it is still interesting to contrast this outcome to what would have been a possible penalty for a prank phone call if Gerald had been in adult court: imprisonment of not more than 2 months and a fine of $5–50. Similar to the cases reviewed before of Mary Ann Crouse and Daniel O’Connell, Gault’s parents filed a writ of habeas corpus saying that their son’s due process rights had been violated. The specific rights in question were the right to a timely notice of charges, the right against self-incrimination, the right to cross-examine witnesses (remember Mrs. Cook did not appear), the right to an attorney, the right to a transcript of the proceedings, and the right to an appeal. All of these rights were not granted under the state’s juvenile court law.
In its decision, the Supreme Court granted the first four of these rights stating that:
Under our Constitution the condition of being a boy does not justify a kangaroo court. (In re Gault 1967)
Another change to the juvenile court was to be close on the heels of this decision. In the case of In re Winship a youth accused of shoplifting was challenging the standard of proof used in the juvenile court. In this case the youth was adjudicated delinquent, and his attorney specifically questioned the judge on whether there was proof beyond a reasonable doubt that he was guilty of the offense. The judge replied that there was not, but that there was a preponderance of evidence and that was the standard for juvenile court. Upon review of this case, the Supreme Court decided that the same standard of proof (beyond a reasonable doubt) should hold in juvenile as in adult court.
In 1971 the case of McKeiver v. the Commonwealth of Pennsylvania was to similarly make its way through the state courts and all the way to the United States Supreme Court. Here, the question at hand was whether to afford juveniles a right to a trial by a jury of their peers. Contrary to the previous two decisions which clearly extended due process rights to juveniles, this case was to mark what is known as “the end” of the due process movement. In this decision the Court held that while the decisions in Gault and Winship focused on insuring accurate fact finding (admission of guilt, cross-examination of witnesses, standard of proof), there was no evidence that a jury was more successful than a judge at determining the facts of a case. Moreover, the plurality for the first time in this series of decisions noted the beneficial nature of the juvenile court and suggested that this particular right would most interfere with the underlying purpose of the court, which was to rehabilitate and not punish the youth. While this reasoning may sound contrary to the prior decisions, it is important to note that individual judges did not for the most part change their vote. That is, those who voted to extend rights to Gault and Winship voted to extend the right to a jury trial as well and vice versa. The difference seemed to be in the changing nature of the Court. Most specifically, Justice Fortas, who had written the majority opinion in both the Gault and the Winship decisions, was gone, replaced by President Nixon’s conservative replacement, Justice Blackman. Justice Warren, who had served as the Chief Justice throughout most of the civil rights movement, was now replaced as well by a more conservative Chief Justice Burger.
This shift from liberal to conservative politics was to effect more than the makeup of the Supreme Court but criminal justice policies across the nation. While the Due Process movement was credited with providing protections to juveniles, it also did something more subtle – it redefined them from needy youth to defendants in court in need of rights. It is only a small step from envisioning these youth as defendants in court to envisioning them then as full-blown criminals. Thus it may come as no surprise that the next major reform to the juvenile justice system was to target its very core: its social welfare roots.
Now referred to as the “get tough movement,” the period of the 1980s and 1990s introduced the most prolific changes to the juvenile court since its inception. Rather than being based on national court cases however, this movement was spearheaded by a media campaign of fear promoting the view of juveniles not as needy and dependent youth but as vicious and hardened criminals in need of punishment (Zimring 1998). As the changes took place at the state level, the flavor of juvenile justice still differs somewhat across states, with some being identified as more punitive (e.g., Texas and Florida), while others maintain the more traditional child-saving orientation (Massachusetts). Many states, however, now fall somewhere in the middle trying to balance the historical treatment focus of their juvenile system with a recognition that there are some juveniles from whom society needs to be protected. This new mission of juvenile justice was grown from a model of juvenile probation, the Balanced Approach, proposed by Dennis Maloney, Troy Armstrong, and Dennis Romig (1988). It has since been combined with principles of restorative justice and is promoted by the federal Office of Juvenile Justice and Delinquency Prevention as Balanced and Restorative Justice (BARJ).
In addition to the purpose of juvenile justice, its practice was altered as well. According to a report by the National Center for Juvenile Justice (Torbet et al. 1996), the get tough movement also changed the confidentiality provisions of many states, allowing for the name of arrested juveniles to be released to the media and to their schools for certain types of offenses. In addition, many states now routinely fingerprint and photograph juveniles accused of felonies, thereby making the process more similar to adult court than a social welfare agency. Every state also readdressed practices for transferring certain juveniles to adult court for processing and created new and innovative ways to transfer more and more juveniles to adult court. For example, in addition to the discretionary waiver hearing set forth by the Kent decision discussed earlier, many states enacted tough new statutory exclusion provisions that exclude from juvenile court jurisdiction either certain offenses (violent offenses) or certain youth based on combinations of their age, prior record, and current offense. Other states awarded both juvenile and adult court concurrent jurisdiction over such classifications of youth and offenses and placed the decision of which court to file charges within in the hands of the prosecutor. This practice is often referred to as “direct file” or “prosecutorial waiver.” Fifteen states have also enacted blended sentencing laws that allow juvenile court judges to impose adult court sentences and/or adult courts to impose juvenile sentences, thereby further blurring the boundaries between juvenile and adult courts.
Although the legacy of the due process movement led to the redefinition of juveniles as “criminal defendants” rather than needy and dependent children, unfortunately, many of its original provisions did not sell as well. According to a series of state-level reports conducted through the American Bar Association’s Juvenile Justice Center, at the turn of the twenty-first century attorneys are still not present at many adjudication hearings. Furthermore, when attorneys do represent youth, they are most often overworked public defenders with little to no training in juvenile justice procedures (Brooks and Kamine 2003; Calvine 2003; Miller-Wilson 2003; Puritz and Sun 2001; Puritz and Brooks 2002). Moreover, Bernard and Kurlychek (2010) also propose that most cases never even reach the trial stage because juveniles are waiving their right to an attorney and confessing to acts before understanding the consequences of such a confession. Because historically the juvenile court was seen as there to help youth, parents often encourage children to confess to crimes, and without the advice of an attorney, such confessions are often offered. Once a youth has confessed, there is little need for an adjudication hearing, so the potential benefits of all other due process protections are negated.
The Juvenile Court Today: Purpose And Practice
The juvenile court of today retains some of the basic principles of its predecessor mixed with a blend of adult criminal court terminology, practices, and punishments. Some of these changes are indeed a direct response to what was seen as a more violent and dangerous type of juvenile crime originating in the inner-city drug markets of the 1980s. Others have been referred to as more “knee-jerk” reactions to an imagined new breed of juvenile offender that simply does not exist. In harsh reality, however, what has happened is that more of the punitive changes of the get tough movement have been embraced than the civil rights protections offered during the due process movement. That is, many juveniles now find themselves before a court focused on punishment without the benefit of full, if any, due process protections.
What does the juvenile court of today then look like? While again, the details will vary drastically state to state, in general, a youth will come into contact with the system via an arrest or a referral through a school (often for truancy) or a parent. Once referred, the juvenile will meet with an intake officer who will conduct a social history investigation and most likely attempt to have the juvenile confess to any charges. Upon confession, a diversion option might be offered such as an informal probation or community service upon the completion of which all charges will be dropped, still allowing the youth to proceed into adulthood with a clean slate. However, most youth will be processed formally in the juvenile court, where they will most often be adjudicated delinquent (usually without the representation of an attorney). A disposition hearing will then be held. The disposition hearing will most likely still result in a “sentence” of probation. However, about 23 % of adjudicated youth will find themselves placed out of home.
For most of those processed formally, their offense will follow them to adulthood and can count against them for educational, employment, and criminal justice purposes. For example, most college applications now ask if one has had a juvenile adjudication. Such questions are routine on employment and housing applications as well. Many youth also do not understand that the juvenile adjudication can count as a prior offense in adult court even though they were not convicted with all the due process protections offered in adult court. For example, in California a juvenile felony counts as a “first strike” in the state’s three strike law.
In addition to concerns over lack of due process protections and lifelong consequences of system involvement, the system has also been greatly criticized for racial bias. For example, while African-Americans make up only about 16 % of the juvenile population of the nation, this group accounts for 27 % of all juvenile arrests. Furthermore, about 70 % of white arrestees as compared to 82 % of African American arrestees are referred to court for formal processing. These disparities continue throughout the system with African American youth being more likely than white counterparts to be detained, adjudicated delinquent, and placed out of home, and also waived to adult court (Snyder and Sickmund 2006). While some argue that due to social and other circumstances it may be that minority youth simply commit more crime, studies suggest that such factors do not account for the vast levels of disparity in the system. Moreover, the fact that the disparity continues throughout decision-making points in the system further points to an institutionalized bias against minority youth (Feld 1999; Bishop and Frazier 1988). Indeed the problem has gained national attention with amendments to the 1974 Juvenile Justice and Delinquency Prevention Act calling for states to directly address disproportionate minority contact with the juvenile justice system in order to be eligible for federal funding.
The Future Of The Juvenile Court
With the more formal processes of juvenile court, the lifelong consequences, and the noted racial bias, some question whether there is even a need for a juvenile court at all. For example, noted juvenile justice scholar Barry Feld accuses the court of providing juvenile “injustice” and calls for the possible demise of the court altogether. According to Feld (1993) there are three possible solutions to the current problem. One is to restructure the juvenile courts to fit their original therapeutic purpose. The second is to admit that the new juvenile court is focused on punishment and not treatment and to provide juveniles within this system full due process protections including the right to a jury trial. The final, and in his view perhaps the most promising, is to abolish the juvenile court altogether and try young offenders in criminal court with certain modifications to both the procedure and punishment to account for youths’ immaturity of judgment.
Others, not yet willing to give up on the juvenile court, prefer the first option. Indeed, even after the get tough movement, public opinion surveys showed that when given the choice between spending tax dollars to imprison youth or to rehabilitate them, most still support the concept of a rehabilitative system (Nagin et al. 2006). Also, states that once embraced a get tough philosophy are beginning to relent on this position and reintroduce leniency for juveniles. For example, Connecticut recently raised its maximum age of juvenile court jurisdiction from 16 to 18, and a recent report put forth by Florida’s Blue Print Commission (2008) indicates it is time to stop getting tough on juveniles and time to start getting smart.
This return to a rehabilitative philosophy fits well within an argument first made by Tom Bernard in 1992 and reaffirmed by Bernard and Kurlychek in 2010. According their book, The Cycle of Juvenile Justice, society fluctuates between thinking juvenile crime is “caused” by lenient programs for juveniles (e.g., rehabilitation) or by policies that are too harsh, thereby forcing officials to choose between doing nothing or imposing detrimental sanctions. Because these ideas clearly place the “cause” of juvenile crime within the system, efforts to reduce crime then also fluctuate between toughening up the system at times when it is thought to be lenient and introducing more lenient policies when it is thought to be too hard (e.g., the current status of the system after the get tough movement). Unfortunately, this misses the point that while the juvenile justice system can respond to delinquency, it does not, nor ever did, “cause” the problem. Juvenile delinquency developed as a consequence of complex modern society and its various social ills. Therefore, every new policy will eventually “fail” to solve the problem it did not create, thus pushing us on to the next turn in this cycle.
However, these authors do not leave us in a sense of perpetual hopelessness but acknowledge that although delinquency will exist as long as the societal conditions that created it exist, there still can be identified “best practices” in juvenile justice policy that help to alleviate the hardships faced by many youths. The federal Office of Juvenile Justice and Delinquency Prevention is a key leader in this endeavor, providing funding to state agencies, program providers, and research entities as they strive to find programs that truly rehabilitate youth into productive adult citizens.
Whatever the future holds, today the reality is that every state in our nation retains some form of a juvenile court that is neither entirely true to its child-saving roots nor fully implemented as a criminal court.
- Bernard T (1992) The cycle of juvenile justice. Oxford University Press, New York
- Bernard T, Kurlychek M (2010) The cycle of juvenile justice. Oxford University Press, New York
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- Blue Print Commission (2008) Getting smart about juvenile justice. Florida Department of Juvenile Justice, Tallahassee
- Brooks K, Kamine D (2003) Justice cut short: an assessment of access to counsel and quality of representation in delinquency proceedings in Ohio. American Bar Association, Criminal Justice Section, Juvenile Justice Center, Washington, DC
- Calvine EM (2003) Washington: an assessment of access to counsel and quality of representation in delinquency proceedings. American Bar Association, Criminal Justice Section, Juvenile Justice Center, Washington, DC
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