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II. A Brief History of the Development of the Juvenile Court
A. Due Process Reforms
1. Kent v. United States
2. In re Gault
3. In re Winship
III. The Juvenile Court Process
B. Transfer or Waiver
IV. Future Directions
As therapeutic legal institution, the juvenile court balances rehabilitation and justice for America’s youth who are at risk for harm or have violated the law. The juvenile court was founded in 1899 in Chicago with the goal of rehabilitating wayward youth. Although the methods of rehabilitation, or treatment, have changed over time, it is a goal that remains central to the function and legitimacy of the juvenile court. Treatment encompasses many different means of attending to the needs of delinquent or neglected youth: psychological supervision, medical services, behavioral management, educational needs, and restitution to victims or the community. Despite treatment being the fundamental goal, juvenile courts recently have become more criminalized because of concerns about fairness; that is, they are more like adult criminal courts. Examples of criminalization include an increased use of determinate outcomes and more adversarial proceedings.
The juvenile court is an important component of the American criminal justice system because it adjudicates wrongdoing by juveniles and attempts to prevent future crimes by addressing the root causes of problem youthful behavior. When parents fail to informally control their children and prevent wrongful behavior, society has an obligation to punish and correct delinquent youth. However, authorities must intervene in a way that acknowledges the limited rationality of immature minds. Juvenile court practitioners assume they can rehabilitate wayward youth through treatment. Consequently, the juvenile court prevents crimes by treating the root causes in individual juveniles’ lives— drug or alcohol dependence, criminal associations, poor parenting, and so on. Because young minds are impressionable, court caseworkers want to intervene early in a child’s life to alter bad behavior and poor decision making. From its inception, the juvenile court has applied the best scientific methods from medicine, psychology, criminology, sociology, and social work to change antisocial behavior. Critics of the juvenile courts have noted a tendency toward punishment over treatment; thus, juveniles have due process rights in court procedures to ensure fair hearings.
Because of the juvenile court’s rehabilitative orientation and legal authority, it has developed terminology that is analogous to criminal justice terms yet is slightly different. Some of the more common terms are defined here. When a juvenile commits a felony crime, it is called delinquency, meaning that a juvenile is delinquent in his or her obligation to society. Delinquency includes personal and property crimes, such as robbery and burglary. Behaviors that are prohibited only for youth are called status offenses (the age cutoff between youth and adulthood varies by state). Status offenses include truancy, drinking alcohol, breaking curfew, and incorrigibility (i.e., being uncontrollable). Cases in which juveniles need intervention because they are not being cared for by parents or guardians are called abuse (if done so maliciously) or neglect (if done so unintentionally). Although juvenile courts handle all kinds or family- and youth-related matters, such as adoption and guardianship, this research paper focuses on delinquency matters.
To emphasize the treatment goal, juvenile courts avoid the stigmatizing language used in the adult criminal courts. For instance, a juvenile is referred to the court rather than arrested. A formal written complaint against a juvenile is called a petition rather than a charge. The trial is called an adjudication, and the sentence is called a disposition. Finally, to be held in custody until the adjudication hearing is called detention.
Juvenile court professionals have designations similar to those of their counterparts in adult courts, but their roles differ slightly. A juvenile court judge is a magistrate who is responsible for adjudicating delinquency, status offenses, and abuse and neglect cases and other legal family matters. In most jurisdictions the judge also runs the juvenile court office, hiring personnel, setting office policies, and planning the budget. A chief juvenile office manager oversees daily functions, but the judge holds the ultimate authority over operations. This particular role for the judge differs from the adult system. If a felony court judge had the same responsibilities in the adult system, that judge would oversee probation and parole as well as sit on the bench. In urban courts with large dockets, several officers, known as magistrates, referees, or masters, may adjudicate cases. A chief judge authorizes these officers to adjudicate cases. Juvenile court cases can involve attorneys acting as prosecutor and defense counsel. Most juvenile courts retain an attorney who acts as a prosecutor, employed by either the juvenile court or the county district attorney’s office. In urban courts a prosecutor may sit in on all felony delinquency cases; in rural courts the prosecutor may only appear in only a few contested cases. The job of the juvenile court prosecutor is to plead the state’s case against the juvenile; however, unlike in the adult criminal courts, the juvenile court prosecutor consults with the probation officers with regard to an outcome that is in the best interests of the juvenile (i.e., involves some kind of treatment plan). More recently, many prosecutors also invoke public safety as a concern in the state’s case to justify secure confinement or waiver.
Although they do not routinely appear in juvenile court cases, defense counsel can be either a court-appointed public defender or a privately hired attorney. Most defense attorneys, however, do not specialize in juvenile court law. Even though criminal court judges appoint public defenders only to represent indigent adults, most juvenile court judges appoint a public defender if requested regardless of a family’s means. In abuse and neglect cases, however, private attorneys, known as guardians ad litem, are routinely appointed by the judge to serve as legal guardians for the youth.
Juvenile court probation officers are central to realizing the juvenile court’s treatment goal. Probation officers handle cases from the initial intake stage to postadjudication probation. In many rural jurisdictions the same person performs all these tasks. Much of what probation officers do is to gather information about the juvenile and the offense. For instance, probation officers write up predisposition investigation reports for the judge to consult once the juvenile has been found delinquent. These reports make treatment recommendations that the judges use to determine disposition outcome. Thus, the juvenile officer must generate an individualized treatment plan that addresses the unique needs of the juvenile. In some jurisdictions, especially when the case is uncontested, the probation officer may present the state’s case before the judge. Thus, the probation officer has much discretion and a wide range of responsibilities in the juvenile justice system.
Before discussing the juvenile court process, a brief history of the foundation of the juvenile court and attempts at reform will help highlight why these courts operate differently from the adult criminal justice system. Then a brief overview of the juvenile court process is discussed, along with current problems facing the institution today. Finally, the future direction of the juvenile court is discussed.
II. A Brief History of the Development of the Juvenile Court
In the century prior to the establishment of the juvenile court in 1899, a growing problem of delinquent and impoverished urban youth led states to respond by building houses of refuge. As American migrants and European immigrants began settling in cities to work in factories, they displaced their children from small homogeneous rural communities into densely populated and diverse urban neighborhoods. These new urban settlers found they had less ability to supervise their children while their children had more opportunity to commit crime. The only official methods of controlling delinquent youth were arrest and adult criminal prosecution. Because judges were unwilling to send children to jails or prison, they were let go with no corrective measures taken. Thus, there were only two formal options available: (1) let them go or (2) send them to adult prisons.
Because no state institution existed to handle delinquent youth, prominent Quaker reformers proposed the houses of refuge for the reeducation and rehabilitation of delinquents and impoverished youth. The Quakers reasoned that poor living conditions caused poor parenting and bad behavior by children; therefore, the way to reform delinquent youth was to remove them from the cities and place them in a rural institution. In the houses of refuge, idle youth would learn to behave through industry, basic education, and moral instruction until they became adults, typically their 21st birthday. It did not take long, however, before the need to control the committed youth overcame the reformers’ good intentions. The houses of refuge became what sociologist Irving Goffman called a total institution—where custody became more important than treatment or education.
The legality of removing children from their parents’ homes and placing them in institutions was tested in the case of Mary Ann Crouse in 1826, 1 year after the first house of refuge opened. To prevent her child from becoming a pauper, Mary Ann Crouse’s mother had her committed to the Philadelphia House of Refuge. Mary Ann’s father, however, challenged the commitment and filed a writ of habeus corpus, demanding to know why she was held in custody, because she had committed no offense. The matter was finally settled by the Supreme Court of Pennsylvania in 1838. The court held that the house of refuge was helping MaryAnn Crouse and not punishing her; therefore, the state was acting on behalf of her interests with good intentions. This case established the legal doctrine of parens patriae, which, literally translated, means “parent of the country.” This doctrine allowed the state to take custody of wayward and delinquent youth. The parens patriae doctrine came from English common law and applied to handling the estate of orphaned children. The Pennsylvania Supreme Court, however, applied parens patriae to the Crouse case and established that the state could act as legal guardian even when the parents did not relinquish their rights. The court reasoned that juveniles were being cared for and not punished, so due process rights were not necessary. Thus, Mary Ann Crouse, and juveniles like her who had committed no offense, could be placed legally in an institution along with delinquents.
By the end of the 19th century, the house-of-refuge movement had failed to maintain best interests over punishment. This became evident in the 1870 Illinois Supreme Court case of Daniel O’Connell, which highlighted the fact that poor juveniles were being punished rather than helped (the opposite finding of the Crouse case). In fact, the O’Connell decision outlawed the practice of sending poor youth who had not committed a felony crime to reform schools. Although the case did not overturn Crouse, it highlighted the Illinois Supreme Court’s skepticism about the benign operation of the houses of refuge. The immediate result of the case was that poor youth could not be placed in a house of refuge simply for being poor.
At the beginning of the 20th century, new reformers, called the Progressives or Child Savers, took up the cause of reforming delinquent youth. The Progressive reformers, mostly wealthy Protestant women, had many of the same concerns as the Quaker reformers, but they tried to improve the condition of wayward youth through the latest scientific and professional means, namely, psychology and law. Although they attempted to improve the conditions in the houses of refuge, their enduring legacy would be to establish a legal institution: the juvenile court.
The first juvenile court was founded in Chicago in 1899, with the intent of extending the parens patriae doctrine for all youth in need of care or supervision—the poor, abused, neglected, orphans, delinquents, and the incorrigible. The need for a separate legal institution was due in part to the O’Connell decision that limited the state’s custody to delinquency matters only. In addition, juveniles who did commit delinquency still had to appear before a criminal court judge, who was likely to dismiss the case. The Progressive reformers petitioned the Illinois legislature to create a juvenile court that would have jurisdiction over all youth and could intervene on behalf of the child’s best interests. Because the O’Connell decision had questioned the legitimacy of parens patriae for nondelinquency matters, the Progressives proposed the new court as a civil court rather than a criminal one. Thus, the court could intervene under parens patriae and do so without having to assure due process protections guaranteed in criminal matters. The Progressives envisioned the juvenile court as a social welfare institution rather than a criminal justice agency.
The early juvenile court hearings were less formal than adult criminal trials, to emphasize the treatment orientation over punishment. The judge or master sat at a conference table with the juvenile rather than sitting behind a bench. Caseworkers who investigated the social needs of the youth were also present at the conference and given wide discretion to help the judge decide how to rehabilitate the juvenile. Instead of providing the same treatment for similar petitions in the name of fairness, probation officers tailored outcomes to each juvenile’s special needs. For example, two juveniles who committed the same act under the same circumstances could receive very different outcomes. As mentioned earlier, the founders of the juvenile court movement used terminology that suggested treatment over punishment; for example, they called the delinquency hearing an adjudication instead of trial and the outcome a disposition instead of a sentence. In the early courts, defense counsel and prosecutors were not necessary, because the hearings were not adversarial: The court was acting in the best interests of the child, so due process was unnecessary.
A. Due Process Reforms
Like the social movement that created the houses of refuge, the juvenile court as an institution generally failed to advance rehabilitation over punishment. By the 1960s, it had become clear that the juvenile court needed further reform, because many juveniles faced long durations in secure facilities without benefit of due process. The U.S. Supreme Court, led by Chief Justice Earl Warren, imposed important reforms on the juvenile court process.
In the 1960s, the Supreme Court began to hear appeals from juvenile court cases in an effort to settle the need for due process in the civil treatment-oriented juvenile courts. The parens patriae doctrine established in the Crouse case limited juveniles’ due process rights in exchange for treating needs over punishing wrongdoing (known as quid pro quo). In addition to the Supreme Court action during this period, President Johnson’s Commission of Law Enforcement and Administration of Justice criticized both the juvenile justice system and the adult criminal justice system and called for comprehensive reform. There are several important cases during this period that led to the criminalization of the juvenile justice system. Only three are discussed at length here to highlight the way juveniles were being treated and how the Supreme Court decided the cases: (1) Kent v. United States, (2) In re Gault, and (3) In re Winship.
1. Kent v. United States
The first case that precipitated legal reform began in 1961, when Morris Kent, a 16-year-old boy, was charged with breaking and entering, robbery, and rape. Already on probation for breaking and entering and purse snatching when he was 14, Kent was arrested for breaking into a woman’s apartment, taking her purse (robbery), and raping her. The police found that latent fingerprints at the crime scene matched Kent’s prints taken during his previous arrest. While in custody, Kent’s mother hired an attorney who anticipated that the judge would waive, or transfer, the case to the adult criminal court, which would most likely result in a longer sentence; thus, the attorney planned to contest the waiver. In planning the case, the attorney filed a motion to see Kent’s social history. The judge, although he received the attorney’s motion, ruled in favor of waiver without holding a hearing. The judge did indicate that he had made his decision after conducting an investigation but did not elaborate on his decision.
After the juvenile court waived its jurisdiction, Kent was indicted in adult criminal court and later tried in front of a jury. The jury found him guilty on six counts of housebreaking and robbery but not guilty of rape by reasons of insanity. The judge sentenced Kent to prison for a term between 30 to 90 years. Kent was committed to a mental hospital until his sanity restored, at which time he would serve the remainder of his sentence in prison.
The U.S. Supreme Court took up Kent’s appeal, which argued that he was denied due process during arrest and during the waiver decision. The Supreme Court ruled that the juvenile court had denied Kent his due process rights in violation of the District of Columbia statutes. The court affirmed that Kent should have had attorney representation, access to his related juvenile court records, a hearing specifically on the waiver decision with due process, and a detailed explanation from the judge for the reasons behind the waiver decision. In an appendix to the decision, the justices listed guidelines for future waiver hearings. The guidelines included eight criteria judges must consider for waiver: (1) community protection, (2) premeditation or aggressiveness of the offense, (3) a crime against persons, (4) reliability of available evidence, (5) adult criminal associates, (6) the juvenile’s sophistication and maturity, (7) prior offense record, and (8) amenability to treatment. Furthermore, the justices allowed that all factors need not be present to waive jurisdiction but said that the judge should address them in his or her final decision.
The Kent decision pertained only to the District of Columbia; however, juvenile courts across the country applied the criteria to their waiver decisions. Ironically, Kent was given a new hearing to reconsider the waiver decision after he had already been found guilty in adult court. The new hearing found that the judge had adhered to the criteria set out in Kent’s own appeal and thus the original waiver decision was valid. Kent therefore served the remainder of his sentence. The Kent decision had two important outcomes: (1) It signaled that parens patriae was no longer beyond due process considerations and (2) established that the Supreme Court would now hear juvenile appeals.
2. In re Gault
The case of Gerald Gault followed the Kent decision in 1967 and affirmed due process protections for juveniles throughout the entire juvenile justice system. In Arizona, in 1964, Gerald Francis Gault, age 15, and Ronald Lewis made an obscene phone call to a neighbor, Mrs. Cook. The obscene phone call included the following statements: “Do you give any?” “Do you have big bombers?” and “Are your cherries ripe today?” Incensed, Mrs. Cook called the sheriff, who arrested Gault and Lewis, placing them in a detention facility. Gault’s parents were not informed that he had been detained; Gault’s mother learned about the detention from the Lewis family.
Mrs. Cook did not attend the hearing the next day, so she did not identify the boys as the callers or offer any testimony. The judge claimed that Gault had admitted to making the lewd statements, but Gault denied making any such confession, claiming that he had only dialed the number. Gault was released to his parents until a second hearing that would decide the outcome.
At a second hearing, Gault’s mother requested that Mrs. Cook be called as a witness to identify the voice of the caller, but the judge said that Mrs. Cook need not be in attendance. There was no transcript kept of the hearings. The judge found Gault delinquent and committed him to a state industrial school until his 21st birthday (a 6-year sentence). The judge later justified his disposition decision on the grounds that Gault had engaged in disturbing the peace and had a history of delinquent behavior (he was on probation for being in the company of another youth who had stolen a purse). Had Gault been an adult, the outcome could have been only a maximum of 18 months and a $50 fine. Gault’s parents hired an attorney who filed a writ of habeas corpus (Arizona did not allow appeals for juvenile cases). The writ was the basis of the U.S. Supreme Court decision.
Gault’s attorney argued that the juvenile court had denied him six constitutional rights: (1) right to notice of charges, (2) right to counsel, (3) right to confront and cross-examine witnesses, (4) right against self-incrimination, (5) right to transcript of the proceedings, and (6) right to an appeal. The Supreme Court ruled in Gault’s favor in four of the six points but did not rule on the right to a transcript or the right to an appeal because there is no constitutional guarantee of appeal and thus no need for a right to a transcript. In its reasoning, the majority argued that the juvenile court was punishing Gault rather than treating him, especially considering that he was at risk for a lengthy commitment in a secure facility, a sentence that no adult would have faced. The justices also questioned the foundation of parens patriae, because the performance of the juvenile justice system seemed to have failed to live up to its intentions. The Supreme Court ultimately concluded that due process protections were necessary when juveniles were likely to face lengthy incarceration.
Because the Gault case had constitutional ramifications, it applied to the entire country, unlike Kent v. United States. The Supreme Court’s affirmation of due process in the traditionally informal juvenile court attempted to reform the institution. After the Gault decision, juveniles had the rights to know the charges, to counsel, to confront witnesses, and to remain silent. The actual implementation of these legal reforms, however, remained limited. Juveniles were likely to have their constitutional rights explained to them by probation officers, much like the Miranda warning given by police, but most juveniles did not ask for legal representation, and most juveniles routinely confessed to the crimes. The implementation of the Gault reforms, although important, remains problematic today. This is discussed in more detail later in this research paper.
3. In re Winship
In 1970, the Supreme Court heard the case of 12-yearold Samuel Winship, who was charged with stealing $112 dollars at a department store. At the adjudication hearing, Winship’s attorney established that the key eyewitness was in a different part of the store at the time of the theft and thus could not have seen Winship steal the money. The judge ruled that Winship was delinquent based on a preponderance of the evidence—that the evidence was sufficient to establish that Winship had committed the theft. Winship’s attorney questioned the judge about the evidentiary standard, because the eyewitness testimony failed to establish that Winship was guilty beyond a reasonable doubt. The judge ruled that the state’s statute on juvenile justice calls for a preponderance of the evidence, a standard of evidence use in civil court.
The Supreme Court again ruled in favor of due process rights for juveniles given that Winship was likely to spend several years in a secure facility. As in Gault, the justices questioned the quid pro quo of the parens patriae doctrine. They ruled that in delinquency cases where a juvenile faced a sentence in a secure facility, the judge must use the reasonable doubt standard before finding juveniles delinquent. Moreover, they made the ruling retroactive so that juveniles who had been committed under the preponderance of the evidence standard prior to the Winship case had to be released or readjudicated. This ruling, like the ones in Gault and Kent, signaled the criminalization, or imposition of due process, in the treatment-oriented juvenile court.
Two more Supreme Court cases during this era affected juvenile courts: (1) McKeiver v. Pennsylvania and (2) Breed v. Jones. The McKeiver case centered on whether juveniles had the right to a jury trial. Unlike in the previous three cases, the Supreme Court ruled that juveniles did not have a constitutional right to trial by jury. In the Gault and Kent cases, the Supreme Court had ruled on the fact-finding by judges and found that due process was necessary to curb abuse. The court stopped short of giving full due process rights to juveniles with McKeiver because they claimed the juvenile court was, in fact, different from the adult criminal courts and they wished to preserve its unique nature. A jury trial, they reasoned, would severely intrude on the informal nature of the juvenile court. The second case, Breed v. Jones, established that double jeopardy applied to adjudication hearings: Juveniles could not be tried twice for the same offense, once in juvenile court and again in adult court. In the Kent decision the justices had called the juvenile court the “worst of both worlds,” meaning that juveniles got neither the due process protection that adults enjoyed nor the rehabilitative treatment that the Progressives had promised. The total effect of the Supreme Court reforms was to ensure due process rights while retaining some of the informal and treatment orientation of the original system. Breed v. Jones was the last case in the historic Supreme Court restructuring of the juvenile court system. By the time of the McKeiver decision, the Warren Court had been replaced by the more conservative Berger Court (four conservative justices were appointed by President Nixon).
These Supreme Court cases were not the end of attempts to reform the juvenile court. Other Supreme Court cases, along with federal and state initiatives, have attempted to return the juvenile court to its original goal of rehabilitation even in a milieu of harsh punishment and individual responsibility. Criminologist Tom Bernard (1992) referred to this ongoing succession of reform as the cycles of juvenile justice. The reforms attempted to date have had unanticipated consequences. Other attempts at reform have included targeted strategies, such as reducing disproportionate minority confinement and individualized treatment courts such as drug and DWI courts.
Although juvenile are now able to assert their due process rights, the dilemma of parens patriae continues: informal justice to facilitate treatment versus formal processing to guarantee due process. For example, juvenile courts operating under a traditional treatment orientation tend to view legal representation as an impediment to rehabilitation; that is, juveniles who retain counsel may escape treatment on legal grounds. Thus, some judges and probation officers unofficially de-emphasize due process in their courts. For example, an intake officer may inform a juvenile of her right to counsel but tell her that confessing without counsel present will ensure she gets more favorable treatment by the judge.
Because the Supreme Court due process reforms have not been fully implemented in many jurisdictions, some critics have called for the abolition of the juvenile court for all delinquency matters. The critics propose that delinquency cases be heard in the adult criminal courts so juveniles are assured full due process. This does not mean juveniles will fail to get treatment; instead, they can still receive a sentence for probation by a juvenile probation officer or placement in a residential treatment facility. Furthermore, the adult court judge would consider the youth and immaturity of the juveniles as a mitigating factor. To date, no state has considered abolishing the juvenile court.
III. The Juvenile Court Process
This section describes the juvenile court process. Although most states follow this same process, there is wide variation in daily practices and policies across states and even within states. Therefore, interested readers should consult practitioners at the local level to find out how they depart from the process described here. Because most referrals to the juvenile court come from the police (about 80%), many delinquency offenses are handled informally (i.e., not referred) before the juvenile court has an opportunity to process the matter. Police discretion in handling juvenile cases is an important consideration but is not discussed here. The first official step in the juvenile court process is called intake.
When the police, schools, social service agencies, or even parents refer a juvenile to the juvenile court, the matter is typically assigned to an intake officer. In smaller jurisdictions the same officer might handle intake and other functions, such as probation. In larger, urban courts an entire unit may be devoted only to intake. If the matter is serious enough, or the juvenile is deemed a threat to himself or herself or the community (e.g., an assault or suicide attempt), the juvenile likely will be sent directly to a detention facility; otherwise, intake is handled at the juvenile court office. In addition, serious offenses in some states, such as homicide or armed robbery, necessitate referral to the prosecutor’s office, thus bypassing the intake stage.
The intake officer typically has wide discretion in how to handle the referred juvenile, especially for minor and first-time offenders. Again, jurisdictions vary on how much discretion the intake officer has—some mandate specific outcomes for specific offenses or specific personal characteristics, such as having a prior delinquency referral. In most jurisdictions the intake officer informs the juveniles of their constitutional rights, including the right against self-incrimination and the right to counsel.
At intake, there are three actions the juvenile court can take: (1) dismissal, (2) diversion, or (3) filing a petition. The first action, dismissal, means that the court takes no further action against the juvenile, although the intake office will collect information about the juvenile and the alleged offense. Although there is no formal (legal) record of the referral, the juvenile court will keep a file, which can influence its future decision making (several dismissals for status offense, for instance, may indicate the need for a filing a petition). The second action, diversion, means that the court does not take formal legal action but does address the offense in some manner. Diversion can be as simple as an informal meeting with the juvenile and his or her parents or guardians, or it can be more comprehensive, such as a list of goals that the juvenile must reach in order to prevent the juvenile office from filing a formal petition. Such goals may include maintaining good grades, being home before curfew, or staying away from delinquent associates. The third action, filing a petition, is the beginning of the formal legal process in the juvenile court.
Filing a petition corresponds to filing charges in the adult criminal court. The petition is a formal legal document that lists the offenses allegedly committed by the juvenile. From its rehabilitative past, juvenile courts typically refer to the case as “in the matter of Gerald Gault” or “In re Gerald Gault” as opposed to criminal courts filing charges as “State of Illinois v. Gerald Gault.” The juvenile court office can file a petition for delinquency, a status offense, or a case of abuse and neglect. Once the petition has been filed, the juvenile must wait for a hearing date with the judge. In many cases, the juvenile court will suspend the petition if the juvenile agrees to adhere to a treatment plan through an informal probation period. This is in essence a plea agreement. This agreement gives juveniles an incentive to rehabilitate in exchange for keeping an official charge off the record, which could increase sanctions in later referrals. If the juvenile fails to meet the treatment goals, the court can reinstate the petition and seek a formal adjudication of the matter.
B. Transfer or Waiver
As mentioned previously, the juvenile court can transfer, or waive, its jurisdiction over a juvenile to the adult criminal courts. There are several different ways in which a juvenile may be waived to adult court. Many states now mandate waiver by statute for specific ages and certain serious offenses (called statutory exclusion or automatic transfer). For those offenses not covered by statutory exclusion, most juvenile court judges have the discretion regarding whether to waive the matter to adult court (a discretionary waiver). In such instances the judge must hold a hearing, called a Kent hearing, to establish two things: (1) that probable cause exists that the juvenile committed the delinquent act and (2) that the juvenile is no longer amenable to treatment by the juvenile court. Once these two elements are satisfied, the court may waive its jurisdiction. Some states require the juvenile office to demonstrate that juveniles are not amenable to treatment (called regular judicial transfer), whereas other states require that juveniles prove their amenability to treatment (called presumptive transfer). Finally, the prosecutor can request in which court, adult or juvenile, to try the offender (called direct file, prosecutor discretion, or concurrent jurisdiction).
Why transfer authority to adjudicate the juvenile in the first place? There are two main purposes. The first is that juveniles who have committed serious offenses or have many delinquency referrals may simply be beyond rehabilitation and require secure custody. The second purpose is that because the sanctions are greater in the adult court, due process is more likely in the adversarial nature of the adult system. A juvenile transferred to the adult criminal courts is therefore likely to be more severely punished but also be afforded full due process protections.
There are two other issues with regard to waiver. First, 23 states have reverse waiver, whereby the juvenile can petition to have the case transferred to the juvenile court. Second, 31 states have enacted “once an adult, always an adult” provisions. In such a state, once a juvenile has been convicted of a crime as an adult, all further cases will be automatically tried in the criminal courts.
Juveniles may be detained in secure juvenile facilities for a short assessment period or until their adjudication hearing, which can be several weeks or even a few months. Most jurisdictions require a mandatory detention hearing, typically 24 to 72 hours, to justify the juvenile’s custody. Although most juveniles sent to detention facilities are quickly released to their parents or guardians, there are three reasons to prolong detention: (1) to prevent harm to the community, (2) to prevent harm to oneself, or (3) to ensure attendance at the hearing. Juveniles who commit a serious crime, such as armed robbery, are likely to be held until their hearing. Detention facilities typically have intake personnel who assess the juvenile’s needs, either informally or through a risk assessment instrument. If a juvenile meets one of the aforementioned criteria, then the judge must assess the matter in order to keep the juvenile in detention. Unlike in the adult system, juveniles do not have the right to post bail and gain an early release prior to the adjudication hearing (another right denied to juveniles).
In the adjudication hearing, the judge or master presides over the fact-finding inquiry. Delinquency adjudication hearings resemble criminal trials, whereas abuse and neglect or other family-related adjudications are more like a civil trial. Once the juvenile office files a petition, the court must notify the juvenile of the allegations in the petition and the time and place of the hearing. Most adjudication hearings are closed to the public and only the juvenile, parents, and counsel may attend. This practice, which dates from the early days of the court, ensures that the public’s learning of the proceedings does not harm the juvenile’s reputation. Furthermore, the juvenile’s records are to remain closed and then destroyed when the juvenile reaches the age of majority; however, this rule is often not followed. In fact, some states now allow juvenile court records to be admitted into adult criminal proceedings as evidence of prior criminal behavior.
Some jurisdictions hold the adjudication hearing informally: The judge sits at a conference table with the juvenile, the parents, and attorneys, if present, and the hearing seems more like a conference than a trial. Other jurisdictions hold a more formal, trial-like hearing in which the judge sits behind the bench and the defense and prosecution sit at separate tables. Larger courts may have a building dedicated to court proceedings, whereas smaller courts hold hearings in the county courthouse.
When a juvenile agrees to accept a ruling of delinquency and accept the treatment plan, the petition is considered uncontested. Accepting the judge’s decision is simply a formality. Often, the adjudication hearing is suspended if the juvenile agrees to the probation office’s treatment plan (similar to a plea agreement). If the juvenile violates the informal probation, the adjudication will resume. As in the adult criminal courts, most cases are handled informally, with juveniles agreeing to an informal probation in exchange for either dismissing the petition or suspending the adjudication hearing. Furthermore, some prosecutors and probation officers will bargain on the specific charges in the petition, hoping to name a less serious offense in exchange for the juvenile agreeing to the treatment plan.
In contested cases the hearing will be more formal, because the state must present its case before the judge. The juvenile has the right to counsel but may waive that right, and most do. If this is the case, the judge must determine whether the juvenile has made the decision freely, voluntarily, and intelligently. This means that the judge must determine whether the juvenile understands the risks of continuing without counsel or whether his or her waiver has been coerced. Thus, the judge will question the juvenile before proceeding. Once both sides have presented the facts and examined witnesses, the judge makes a determination of whether the juvenile is delinquent or in need of supervision in other matters.
In the disposition hearing, like sentencing in the adult system, the judge decides case outcomes. Some states require separate adjudication and disposition hearings; in other states the disposition hearing immediately follows adjudication. Prior to pronouncing the disposition, the judge consults the predisposition report, prepared by a probation officer. The predisposition report is a presentence investigation that includes the social history of the juvenile. Many factors in the report are presented to the judge, including the nature of the offense, the delinquency record, school record, family history, and psychological evaluation, and the probation officer’s assessment of the juvenile’s amenability to treatment. The report can also include mitigating and aggravating factors, such as gang involvement or premeditation. Not surprisingly, there is wide variation in the amount of information and scope of such reports. Finally, the probation officer makes a recommendation about the outcome and treatment plan. In most states, the judge is not supposed to see the predisposition report or know the probation officer’s recommendation until the juvenile is found delinquent. Given the close relationship between the judge and juvenile court officers, however, the court officers often share this information informally.
Several dispositional outcomes are available to the juvenile court, but the resources for treatment vary by community (urban, suburban, or rural). Thus, depending on where the juvenile receives the disposition, two juveniles with similar backgrounds, offenses, and delinquency records may receive very different outcomes. This is referred to as justice by geography. In general, there is a continuum of dispositional outcomes, from informal probation to long-term secure custody. First-time offenders get less restrictive outcomes, unless the offense is particularly serious. As juveniles reoffend, extending their delinquency records, the dispositional options become more formal and punitive, especially if juveniles appear unwilling to accept treatment.
Probation can be informal (under no disposition order) or formal (decreed by disposition). Informal probation can be very simple, for example, no arrests or referrals for a set period. It can also be a more formal probation, in which the juvenile must meet several demands or risk continuing through the juvenile court process. Probation generally involves attending school, meeting curfews, making restitution to victims, performing community service, and undergoing behavioral or substance abuse therapy. The possible conditions are endless, but most juvenile courts have some kind of general probationary guidelines in place. Some probation officers use a certified risk assessment instrument to score the juvenile’s needs and apply the appropriate probation plan. Many states now include intensive probation that uses global positioning system monitoring and frequent house visits by the probation officer. Should a juvenile violate the terms of the probation, the probation officer applies to revoke the probation and reinstitute the formal process.
If probation fails to reform, or the offense is serious enough, juveniles may face placement in an institutional setting, which can range from open residential facilities to secure confinement. At the soft end of confinement, juveniles may be sent to treatment programs that use the cottage-style residence. These are often located in rural settings, like the houses of refuge, and such places teach behavior modification, therapy, conflict resolution, and improving self-esteem. Many such programs are privately run and contracted by the state. If juveniles successfully complete the program, they are returned to their families and communities.
Juveniles who are considered beyond treatment or who commit serious crimes are sent to juvenile correctional facilities, which almost always are run by the state. These institutions do provide some treatment programs and education; however, they often resemble adult prisons in physical arrangement and operation. Such facilities represent the most severe dispositional outcome.
IV. Future Directions
As has been noted, the juvenile court has become more criminalized in an environment where public safety concerns have mixed with the rehabilitation goal. The result has been that the assertion of due process rights to protect juveniles from unfair treatment, along with public demands to get tough on violent juvenile offenders, has increased outcome severity. The future is likely to see such mixed practices continue. For example, mandatory transfer decisions will continue to be revised to include specific offenses or a combination of offense and prior record. Also, prosecutors are also likely to gain influence in transfer decisions. This is especially likely if juvenile crime rates increase again after a period of decline. On the other hand, adjustments such as reverse waiver allow juveniles the possibility of reprieve from mandatory guidelines. Like the adult criminal justice system, juvenile court judges will continue to lose discretion in their decision making for serious offenses.
The most prominent reform that will affect the juvenile justice system is restorative justice: the philosophy that informs practice, like the idea of “best interests” from the early days of the juvenile court. Restorative justice asserts that the offender has harmed individuals and the local community, not the state. The offender should therefore make restitution to the victims and community through mediation and community service. Although community service and monetary restitution have been common aspects in juvenile court sanctions, they must be connected to the offense in order to address the needs of restorative justice. Treatment for juvenile offenders (education, vocational skills, or anger management) is also an important component of restorative justice because it facilitates the juvenile’s ability to complete the restorative process.
Restorative justice has received favorable assessment by agencies that have adopted it; however, researchers have not sufficiently supported it empirically. Although restorative justice attempts to reorient the juvenile justice system away from punishment, it does not expressly seek to reduce recidivism; thus, its future adoption across the United States is unlikely to be embraced beyond restorative justice advocates unless it also demonstrates practical utility, such as reducing crime. In addition, the promise of reforming the juvenile court in favor of benevolent treatment over punishment is no guarantee of success, as history has shown.
One final future trend that appears to be helpful is the implementation of empirically established practices and policies. Often called the “what works” paradigm, researchers and funding agencies collaborate to find out why some programs work while others, even promising ones, fail to be implemented successfully. For example, the Drug Abuse Resistance Education program (D.A.R.E.), although wildly popular in many communities, has failed to reduce drug abuse among teens. On the other hand, a similar education program aimed at keeping kids out of gangs— Gang Resistance Education and Training (GREAT)—has had successful evaluations.
The history of the control and rehabilitation of juveniles in the United States has proven to be good intentions that have failed. Although the fundamental idea of treating juveniles rather than punishing them is appealing, only close attention to policy reforms will prevent future unanticipated consequences.
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