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During the last quarter of the twentieth century, a conservative reform movement took hold that quickly came to dominate the national debate over juvenile justice policy. Legislators in virtually every state enacted punitive legislation that challenged foundational principles of the juvenile justice system and, for a time, appeared to threaten its continuation. This research paper considers this “Get Tough Era” in juvenile justice – the factors that brought it about, the changes it introduced, and its legacy for the future.
In order to appreciate just how radical a departure the contemporary Get Tough movement represents, it is helpful to recount a bit of history.
Juvenile Court and the Progressive Era: A separate justice system for juveniles took shape over the course of the nineteenth century and came to fruition in 1899 with the founding of the juvenile court in Cook County (Chicago), Illinois. Beginning in about 1820, industrialization, urbanization, and immigration transformed what was then a largely rural America: Factories sprang up from the Eastern seaboard to the Midwest, drawing internal migrants from rural areas and massive waves of immigrants from Western and Eastern Europe. In a single generation, small towns like New York and Chicago grew into densely inhabited and chaotic cities characterized by a host of social problems: slums, infectious disease, alcoholism, mental illness, homelessness, civil unrest, and burgeoning levels of crime and delinquency. In impoverished urban neighborhoods, children living in crowded ghetto tenements took to the streets to play, to scavenge, and to work – as newsboys, shoe shiners, peddlers, beggars, and thieves. The presence of destitute children in the streets, unsupervised and exposed to the perceived evils of urban life, disturbed more affluent residents. By the 1880s, groups of educated, middle-class women (the “Child Savers”) came together to address the plight of these endangered (and potentially dangerous) children. They advocated successfully for many reforms, including child labor laws, compulsory school attendance laws, mothers’ pensions (the precursor to Aid to Families of Dependent Children), and a specialized court to handle delinquents and children at risk for delinquency (Feld 1999).
Up to this time, children who violated the law were prosecuted in criminal courts and received the same punishments as applied to adults. In urging the removal of children from the purview of the criminal justice system, the Child Savers argued that there are important differences between youth and adults that ought to inform societal responses to youth misbehavior. Drawing from the emerging discipline of child psychology, they portrayed juvenile offenders as immature, dependent, and vulnerable children who require special protection. In contrast to adults, they argued, children are immature not just physically, but mentally: They lack adult capacities for reasoning, moral understanding, and judgment. Because these capacities are the grounds on which attributions of criminal culpability rest, it is unjust to subject youth to adult criminal punishments. Moreover, they contended, whereas adults are relatively fixed as to personality and disposition, children are malleable and especially vulnerable to external influences. Consequently, they ought to be shielded from exposure to unwholesome elements in their neighborhood and home environments and – should they commit crime – from the corrupting influence of adult offenders in jails and prisons. At the same time, young people’s malleability makes them especially good candidates for intervention to prevent them from becoming adult offenders. Finally, unlike adults, children are dependent on others to meet their basic needs and to provide guidance and supervision. They argued that when the natural parents are not equal to this task, the state has an obligation to step in and assume this responsibility.
On these grounds, the Progressives urged the creation of a juvenile court that would replace the punitive model of criminal justice with a civil-therapeutic one: The new court would function as a benign, nonpunitive institution with a mission to act “in the best interest of children” to safeguard their welfare and promote their positive development. Based on this optimistic vision, the first juvenile court was established, supported by the common law doctrine of parens patriae – the state as parent and arbiter of child rearing. Because the court’s mission was benevolent, its framers did not hesitate to draw its jurisdiction broadly to include not only children accused of crime but also those merely “at risk” for delinquency (Tanenhaus 2004). Further, its jurisdiction over children brought under its care extended to the age of majority: A child found within the purview of the juvenile court law might remain under state care and supervision for a brief period or an extremely lengthy one, depending on the nature and extent of his problems and needs.
To protect children, the court closed its proceedings to the public and created euphemisms for the stigmatizing terminology used in criminal courts. (“Petition,” “adjudication,” and “disposition” replaced “charge,” “conviction,” and “sentence.”) In court, a judge met with the child and his parents, urged the child to admit wrongdoing, gathered information – less about what the child had done than about why he had done it – and developed a treatment plan to address the youth’s problems and needs. The treatment most often involved probation or commitment to a correctional “school” for the purpose not of punishment but rehabilitation. Although the court’s unregulated procedures had enormous potential for abuse, supporters trusted that the judge would “put himself in the position of a wise, affectionate, and careful parent” (Cardozo 1925) and exercise only benevolent despotism.
Setting the Stage for the Get Tough Era: For about 70 years, the juvenile justice system functioned in relative obscurity without challenge to the lawlessness of its court proceedings or the punitive realities of its correctional institutions. This came to an end in the late 1960s and early 1970s when, in a series of decisions, the Supreme Court compared the juvenile court’s lofty rhetoric with the reality of the juvenile justice system in practice and, drawing parallels between the juvenile court and the Star Chamber, concluded that youth were entitled to constitutional procedural safeguards to protect them from erroneous findings of delinquency. Most importantly, the Court afforded juveniles the right to counsel, the right to confront and present witnesses, and the privilege against compelled self-incrimination, and required that offenses be proven beyond a reasonable doubt.
The Court did not endorse punishment by the juvenile courts, nor did it abandon the idea of rehabilitation. Indeed, it encouraged states to continue to pursue the “noble experiment” with which it began. However, by providing youth with procedural protections, the Court shifted the focus of juvenile proceedings from identifying and addressing the causes of a youth’s misbehavior to proof that she or he had committed a crime. In so doing, the Court made explicit a relationship between law violations and juvenile court dispositions that had previously been implicit and unacknowledged (Bishop and Feld 2012). Notwithstanding the Court’s continued endorsement of the juvenile court’s therapeutic mission, its decisions had the effect of creating a hospitable climate for the punitive reforms that would soon follow. Immediately, for example, its decisions made it imperative that prosecutors participate in juvenile court proceedings for the first time. Prosecutors established juvenile divisions, staffed them with traditionally trained attorneys, and infused the court with an adversarial criminal law orientation.
An additional impetus to the Get Tough Era was the publication in the 1970s of a series of widely publicized reviews of research on the (in) effectiveness of treatment programs. Especially influential was the Martinson Report (Martinson 1974), which drew the bold conclusion that “nothing works.” Critics responded that the negative results could be explained by research flaws and poor program implementation, rather than by the absence of positive treatment effects. But the critics’ cautions – and even the subsequent retraction of the report’s conclusion by its authors – received little notice. Instead, the rehabilitative mission of the juvenile court was increasingly viewed with skepticism.
Rising juvenile crime rates further contributed to punitive shifts in juvenile justice policy. Juvenile arrests increased substantially from the mid- 1960s until 1980, reinforcing the view that the juvenile justice system was ineffective. Although juvenile crime then declined briefly in the early 1980s, another much more dramatic upswing followed. This one turned out to be a watershed.
Moral Panic and the Get Tough Era: From the mid-1980s to 1994, rates of juvenile gun homicide escalated sharply, especially among minority youth in impoverished areas of the nation’s inner cities. The violence received an extraordinary amount of media attention. Images of young black youths wielding guns tapped into racial stereotypes, ignited public fears, and fueled what has been described as a “moral panic” (Chiricos 1994). In a moral panic, the media, politicians, and the public reinforce each other in an escalating alarmist response that exaggerates the magnitude of the threat and produces urgent calls to “do something.” In the midst of a panic, legislators rush to contain the threat, frequently by adopting drastic measures that are ill-conceived and overreaching.
The media responded to the urban, predominantly black youth gun violence with heavy and sensationalized coverage. Media portrayals of juvenile offenders shifted from the traditionally rather benign images of puerile and corrigible delinquents to menacing portraits of savvy, ruthless, and morally impoverished “superpredators,” whose numbers were forecast to swell rapidly. Political scientist John Dilulio (1995 p. 23) famously claimed that “Americans are sitting atop a demographic crime bomb,” while others warned of a coming “bloodbath” of youth violence (Fox 1996).
Politicians fueled public fears for electoral advantage. They pushed violent crime to the top of the political agenda and, wary of being labeled “soft on crime,” vied to outdo their opponents in the rush to take a hard line on juvenile offending. They sharply challenged the assumptions about youth that had animated the earlier juvenile court movement. By embracing the imagery of shrewd, adult-like predators, they gave traction to a new, retributive sound bite – “adult crime, adult time.” Further, and without any evidence of its efficacy, they claimed that severe punishment of young offenders would protect the public safety.
Get Tough Measures: Legislatures in nearly every state responded by taking steps to facilitate the transfer of greater numbers of juvenile defendants to criminal court for prosecution and punishment as adults. Historically, juvenile court judges had the power to waive youths to criminal court, but it was a power they exercised rarely. A 1966 Supreme Court decision (Kent v. United States, 383 U.S. 541) made it more difficult for them to do so. They first had to conduct a “full investigation” and hold an adversarial hearing, then set forth in writing facts sufficient to support a determination that the child was either too dangerous to remain in the juvenile system or was not amenable to treatment. Believing that juvenile court judges were loath to waive even serious offenders, legislators created alternative, expedited transfer methods that altogether circumvented the juvenile court or that sharply constrained juvenile court judges’ discretion to retain youths in the juvenile system (Bishop and Frazier 2000).
In many states, lawmakers shifted authority to choose the forum in which a youth would be tried from the juvenile court judge to the prosecutor, who was now permitted to “direct file” a case in either juvenile or criminal court. Most often, prosecutorial direct file laws fail to specify any standards or considerations for decision-making. Direct file is carried out without a hearing, without explanation, and with no opportunity for judicial review. In the 1970s, only two states permitted prosecutorial direct file; by 2000, the number had risen to 15 (Griffin et al. 2011). In addition, most states made transfer “automatic” for certain crimes or offense/prior record combinations, often without regard to the offender’s age. Before-1970, only eight states had automatic transfer laws, and these most often applied only to murder and other then-capital crimes; by 2000, 38 states had enacted these laws and had expanded their scope to include lengthy lists of offenses. The adoption of “once an adult, always an adult” provisions amplified the effects of these other changes by mandating criminal court processing of all post-transfer offenses. Finally, two states (New Hampshire and Wisconsin) took the most sweeping steps to get tough on juveniles: They lowered the maximum age of juvenile court jurisdiction from the 18th to the 17th birthday, which transformed all 17-year-old juvenile offenders into adult criminals, no matter how minor their offenses. Analysts estimate that, as a result of these reforms, somewhere between 200,000 and 250,000 youth under age 18 were being tried annually in American criminal courts by the turn of the century. Many were neither particularly serious nor particularly chronic offenders, and some had not yet reached their teens (Feld and Bishop 2012).
In the criminal courts, judges did not treat youthfulness as a mitigating factor in sentencing transferred youths. Indeed, they imposed harsher sentences than those imposed on comparable adult defendants. Even extreme punishments were not deemed inconsistent with youth. Until the Supreme Court’s decision in 2005 (Roper v. Simmons, 543 U.S. 551) to ban capital punishment of offenders under age 18, judges in several states sentenced teens to death. By the turn of the century, nearly ten thousand inmates were serving life sentences for crimes they committed before they were 18. Moreover, more than two thousand were serving sentences of life without the possibility of parole (LWOP) in contravention of the United Nations Convention on the Rights of the Child. The harshness of youth crime policy in the USA clashed with policy and practice in the rest of the world. Juveniles received LWOP sentences in only three other countries, and in these three, a total of about a dozen offenders were serving these sentences (Human Rights Watch/Amnesty International 2005).
Punitive policy changes were not limited to the removal of juveniles to the criminal courts.
Legislatures in nearly every state also amended their juvenile code purpose clauses to endorse “punishment,” “holding youth accountable,” and “protecting the public safety” as new objectives of the juvenile court. Although the traditional goal of rehabilitation remained, it was eclipsed by these other objectives. Legislatures in nearly half the states adopted offense-driven sentencing in their juvenile courts. Some adopted sentencing guidelines to impose presumptive, determinate, and proportional sentences based on age, offense seriousness, and prior record. Others enacted mandatory minimum sentencing provisions that prescribed either a minimum period of confinement or a minimum level of secure placement commensurate with the seriousness of the offense. Finally, some created a “blended sentencing” option that permitted or required juvenile court judges to impose criminal sentences (40 years, at the extreme) on youth adjudicated delinquent for certain crimes. Each of these sentencing methodologies applied offense-based principles of proportionality to rationalize sentencing decisions, increase the penal bite of juvenile sanctions, and demonstrate legislators’ toughness (Feld 1998).
Other changes chipped away at special protections that youths in the juvenile system had traditionally enjoyed. Juvenile court proceedings had historically been closed to the public, juvenile records were confidential and subject to later expungement, and at least nonserious juvenile offenders were exempt from photographing and fingerprinting after arrest. During the Get Tough Era, the vast majority of states opened juvenile proceedings to the public, allowed juveniles to be photographed and fingerprinted, and required them to give DNA samples (Szymanski 2009). States increasingly used delinquency adjudications obtained without a jury trial to enhance adult criminal sentences and to subject youths to longer terms (Feld 2003). Especially controversial were decisions to make juvenile sex offenders – even those adjudicated in juvenile court – subject to Megan’s Law, which required them to register with police and, in some instances, provided for community notification of their identities, whereabouts, and offenses (Zimring 2004). By the turn of the century, most states permitted or required juveniles convicted of sex crimes to register as sex offenders. In about half of the states, juvenile sex offenders faced a possible lifetime of registration.
The frenzy to “get tough” on juveniles reflected a broader climate of fear of young people – especially other people’s children – and a simplistic view of “punishment as panacea” that soon spread to other arenas. In response to escalating youth violence, Congress passed the Gun Free Schools Act of 1994 (20 U.S.C. } 7,151 ), which required that states receiving federal funding mandate expulsion for at least 1 year of any student found in possession of a firearm on school grounds. States and schools responded by adopting zero tolerance policies, often expanding the prohibition beyond possession of firearms to include all manner of weapons or drugs, as well as violation of school rules. In some jurisdictions, school administrators applied these draconian policies broadly and senselessly to children who made innocent mistakes, such as bringing scissors or over-the-counter medications to school. Zero tolerance policies have been linked to increased dropout rates and referrals to juvenile court for behaviors that school officials have traditionally handled informally (American Psychological Association Zero Tolerance Task Force 2008). Further, because these policies have more often been implemented in urban schools, they have had a disproportionate impact on minority youth (Fenning and Rose 2007).
In the 1980s, school departments also began hiring police as School Resource Officers (SROs) to combat drugs, enforce school rules, and teach antidrug and antigang curricula and, in the 1990s, to provide heightened security following some high-profile school shootings (Redding and Shalf 2001). Expanded use of metal detectors and drug sniffing dogs accompanied the heightened police presence. Increasingly, police arrested young violators not for drug and weapons offenses but for disorderly conduct, disturbing the peace, and disruption of school assembly – based on normative adolescent acting-out behaviors, like cursing, clowning, and participating in cafeteria food fights, that used to be handled informally by school officials through school detention or intervention with the youth’s parents. The combination of zero tolerance policies and SRO programs resulted in the removal of thousands of youths from mainstream educational environments and produced a dramatic escalation in arrests and referrals to juvenile courts – a phenomenon that has come to be known as the School-to-Prison Pipeline.
In sum, as the twentieth century came to a close, the United States embraced policies that increased the punitive powers of juvenile courts, expanded the reach and bite of transfer laws, and criminalized much ordinary adolescent misbehavior. The harshness with which the United States responded to youthful misconduct was unparalleled, and the punitive fervor showed few signs of abating.
Legacy of the Get Tough Era: At the start of the twenty-first century, the future of juvenile justice looked bleak. But a number of developments in the first decade of the twenty-first century hint at a counterbalance to the repressive policies of the recent past. Beginning in 1994, youth violence plummeted and stabilized in the 2000s at levels not seen since the 1970s (Snyder 2012). This precipitous decline seems to have alleviated the moral panic that sparked the unprecedented spate of punitive legislation, allowing for consideration of more moderate, humane, and sensible policies.
Important new discoveries in developmental psychology and neuroscience have affirmed the Progressives’ belief that adolescents are immature, vulnerable, and prone to poor and impulsive decision-making. In a signal development, the Supreme Court gave its imprimatur to notions of adolescent immaturity, impetuosity, and vulnerability and to their legal corollary – lesser culpability – in two decisions that limited the punishments to which even the most serious young offenders can be subject. In 2005, the Court in Roper v. Simmons abolished the death penalty for persons convicted of crimes committed before they were 18 years of age. In Graham v. Florida (2010), the Court banned sentences of life without possibility of parole for youths convicted of nonhomicide crimes. The Court in Graham emphasized youths’ immature judgment, reduced self-control, susceptibility to negative peer influences, and ongoing character development and cited recent developments in developmental psychology and neuroscience as the linchpin of its decision. Roper and Graham are groundbreaking decisions that shatter the superpredator theory of juvenile offending and reaffirm bedrock principles on which the juvenile court was founded.
Signs of disenchantment with harsh punishment as a response to juvenile crime are evident in a number of arenas. Expansion of transfer policies has slowed almost to a halt; in some instances, legislatures have retrenched and modified some of the harshest laws. Most dramatically, the Connecticut legislature recently raised the lower bound of the criminal court’s jurisdiction, from 16 to 18, while the Illinois legislature shifted the lower bound of criminal court jurisdiction from 17 to 18 for youths charged with misdemeanors. In 2008, the voters of California defeated Proposition 6, which would have created a presumption that 14-year-olds charged with gang-related felonies are unfit for juvenile court. Some states have recently restricted the offense or offender criteria for transfer or mitigated the criminal sentences to which transferred youths may be subject. Others have taken steps to rein in prosecutorial discretion either by severely restricting the scope of offenses subject to direct file or by requiring prosecutors to provide criteria and assessment procedures for choosing the forum in which youths will be tried (Bishop and Feld 2012).
Recent developments in juvenile corrections also suggest a softening of the punishment agenda. The 1980s saw the establishment of boot camps, first in the adult system (1983), then in the juvenile system (1985). The federal Office of Juvenile Justice and Delinquency Prevention (OJJDP) supported the boot camp initiative and funded an evaluation of three programs in three different states, which showed that boot camp participants had higher recidivism rates than controls. Despite the negative results and allegations of staff abuse, boot camps “caught on” in the same way that other deterrence-based programs have. However, the tide is beginning to turn. Several states have eliminated juvenile boot camps, and a comparison of OJJDP’s Juvenile Residential Facility Census for 2006 with that for 2002 shows that the number of boot camps declined by nearly 50 % over that period.
In addition, several states have closed (or been forced by the courts to close) training schools following the disclosure of terrible conditions of confinement (California, New York, Mississippi, Texas, Louisiana). Under court order, California has shut down all but two of its training schools and is slated to close the remainder in the very near future. Texas also shut down four maximum security juvenile facilities and reduced its juvenile institutional population by more than half. Florida not only shut down all of its boot camps but also downsized its training schools and youth development centers and placed a cap of 165 beds on all residential placements. The downsizing that is taking place across the nation is motivated in part by external pressures to close large institutions where conditions of confinement are most problematic, in part by budgetary constraints, and in part by research evidence that smaller institutions and community-based programs are more likely to realize rehabilitative aims.
Recently, the results of a number of public opinion polls have received considerable publicity. They show that, although the public supports punishment of serious juvenile offenders as a means of protecting the public safety, there is much broader public support for rehabilitation than was previously believed (Nagin et al. 2006). The vast majority of survey respondents support treatment as a response to all but the most violent juvenile offenders. Consistent with this public support, there are signs of a revitalized treatment orientation in juvenile justice practice. This is apparent in the rapid proliferation throughout the nation of juvenile drug courts, which harken back in many respects to juvenile courts of a century ago. In drug courts, judges are expected to establish strong supportive relationships with juvenile offenders, to monitor closely youths’ progress in treatment, and to apply modest sanctions for noncompliance and strong positive reinforcements for youths’ active participation in the court’s treatment plan (Butts et al. 2012).
While research has shown that punitive sanctions are largely ineffective in reducing the risk of recidivism, there is considerable evidence that some correctional treatment strategies are effective when implemented well. In the last 15 years, a number of private, state, and federal initiatives have produced reviews of treatment program evaluation research and provided authoritative lists of “what works” (Center for the Study and Prevention of Violence n.d.; Campbell Collaboration 2009; Lipsey 2009) These, in turn, have supported a movement toward “evidence-based practice.” In an increasing number of jurisdictions, governmental funding of programs is contingent upon the adoption of evidence-based best practices. The combination of solid public support for rehabilitation coupled with social science evidence of effective treatment methodologies bode well for a return to more traditional, treatment-oriented juvenile justice systems.
Signs of a counterbalance to the repressive policies of the recent past are evident in the Supreme Court’s endorsement of views of youth much more in line with those of the Progressives and in the softening of criminal punishments, the modest retrenchment of transfer laws, the introduction of specialized treatment-oriented courts, and the renewed focus on evidence-based treatment in juvenile corrections. This is not to say that the Get Tough approaches of the 1980s and 1990s will soon disappear. Punitive approaches institutionalized through legislative reforms are stubbornly resistant to reversal and are unlikely to be quickly undone. The legacy of the Get Tough Era will surely continue for some time to come.
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