Bryan Hogeveen & Joanne Minaker. Encyclopedia of Prisons and Correctional Facilities. Editor: Mary Bosworth. Volume 1, Sage Reference, 2005.
Youthful offenders who are brought to the attention of the juvenile justice system by parents, school officials, or (most often) police are governed by a distinct set of practices and philosophies from those encountered by adults accused of crimes. Usually, unless they are waived to adult courts, they are processed by juvenile courts, and if sentenced to confinement, sent to juvenile detention centers. Specific beliefs underpin the juvenile justice system that have a history of their own, and differentiate the treatment of young offenders from their older counterparts.
Child savers established the first juvenile courts and justice system in the late 19th and early 20th centuries in North America. These reformers believed that a separate system of governance would reclaim delinquent youths and would function in their best interests. This view was premised on the philosophy of parens patriae where the state takes the role of guardian over delinquent youths. However, during the late 20th century many of the original philosophical underpinnings of the juvenile justice system were eroded as practitioners of juvenile justice abandoned rehabilitative beliefs based on the particular needs of youths in favor of punitive ones oriented toward coercive intervention. This shift in ideology is nowhere more apparent than in the United States where young people are incarcerated at a rate that has far surpassed many other industrial nations.
The juvenile court and correctional services are at the apex of modern juvenile justice systems, which operate on many levels carried out by social and legal agencies, schools, police departments, welfare agencies, and other nonjudicial organizations. In large urban centers in North America, juvenile justice systems are composed of the following elements:
- Screening and intake
- Detention
- Probation
- Record keeping and research
- Psychological screening and mental health
- Protective services
- Medical services
- Volunteer services
- Court services (judges, district attorneys, etc.)
- Aftercare
Unlike most other Western nations such as Canada that can boast a national or single juvenile justice system, American juvenile justice systems vary considerably by jurisdiction. Across the country separate systems controlled by state legislation differ in mission, scope, and procedure. Although these variations provide states with an opportunity to experiment with innovations in juvenile justice (while others observe the outcome), this configuration makes generalizing about the practices and procedures adopted in the United States difficult. In some jurisdictions, for example, rather than operating a separate juvenile court, special times are set aside in the adult court to hear matters related to young offenders. Whereas some states administer juvenile justice matters in a specialized courthouse with a large bureaucratic network, others operate in a single courtroom with only a skeleton crew. Despite state variation, the U.S. Constitution, federal policies, and legislation along with political and social pressures ensure that juvenile court processes share some degree of coherence across the country. This entry describes the emergence, shifts, alterations, developments, and current controversies evident in the U.S. juvenile justice system.
History
Before the first juvenile court was inaugurated in Illinois in 1899, juvenile offenders over the age of 7 were dealt with in much the same way as adults; that is, they were understood as, and adjudicated as, young adults. For most of the 19th century, the law was not directed toward reforming and reclaiming juvenile offenders; rather, legal processes attempted to proscribe behaviors through coercive punishments. Youthful transgressions against criminal law were managed through a generalized system of prohibitions and punishments. This retributive system of justice considered juvenile offenders to be rational and calculating actors. Consequently, findings of guilt were determined by the actions of the individual with little consideration for their situation, life experiences, social position, or mental state. When it came to governing juvenile offenders, justice officials held little regard for the individual’s stage of life or for the conditions that may have led to the commission of his or her offenses. Children who committed crimes were believed to be acting with criminal intent and were consequently punished in much the same manner as adults.
While some evidence suggests that juries were often sympathetic to juvenile offenders, judges sometimes resorted to the use of capital punishment for youths convicted of relatively minor crimes, indicating that age was not always a mitigating factor. Nevertheless, the English Common Law tradition of doli incapax dictated that children under age 7 could not be held criminally responsible. It also assumed that youths between the ages of 7 and 14 should not be convicted of a criminal offense unless the prosecuting attorney could prove the offending party could form the necessary intent.
The development of a separate way of thinking about the governance and adjudication of deviant youth first appeared during the 19th century with the development of the reformatory and houses of refuge movement. Reformers believed that incarcerating young offenders in separate institutions from adults and providing them “a good dose of institutionalization could only work to the child’s benefit” (Rothman, 1971, p. 209). As the 20th century approached, carceral methods of governing deviant youths came under sustained attack by child savers. They were concerned about the negative elements of institutional confinement—the artificial environment and the lessons in crime and deviance to which children were exposed—and soon became convinced that community-based solutions were far superior.
Agreement among child savers about the importance of separate reform facilities for juvenile offenders ultimately led to the reformatory movement and the subsequent creation of separate institutions for boys and girls. Beliefs that families and environmental conditions caused juvenile crime created a uniquely American juvenile justice system. Reformers came to believe that youths who grew up in the seedy areas of town, who were not compelled by parents to attend school, were found begging on the street, associated with felonious peers, and were engaged in sexual immorality, could not be held accountable for their deviance in the same manner as adults. Instead, they thought that the deleterious conditions that surrounded them were to blame for their offending behavior and eclipsed any personal culpability that could be attached to deviant boys and girls. The wretchedness connected to the social milieu was so overpowering that moral crusaders came to see the deviant actions of youths as the result of immersion in such injurious environments. Moreover, reformers remained convinced that in the same way juvenile deviance was the product of immersion in regrettable social and economic conditions, so too could their wayward life be reversed. The causes of juvenile crime and delinquency, however, were not considered to be identical for boys and girls.
The concerns raised by child savers, justice officials, and parents over working-class boys’wayward character diverged from the anxieties these actors attached to delinquent girls. Feminist historians have observed that girls, unlike their male counterparts, were arrested and institutionalized for violations of virtuous feminine conduct and errant sexuality. The visibility of adolescent males’ deviance became a troubling feature on city streets as early as the mid-19th century. While boys were not arrested and detained for violations of gender roles in the same way as girls, attempts were made to correct wayward working-class masculinity by juvenile courts, in institutions, on probation, or by social welfare agencies such as Big Brothers and the YMCA. Boys raised the concern of juvenile justice officials and deviated from working-class parents’ understanding of respectable conduct when they were truant, refused to work, failed to revere adult authority, associated with felonious peers, and committed crimes.
A separate juvenile justice system was created first in Illinois in 1899 and shortly thereafter was quickly diffused throughout the United States and exported to Canada and Australia. By the 1920s, nearly every state had a juvenile court in operation that attempted to reform juvenile offenders in the community through programs such as probation. During the 1960s and 1970s, however, the philosophical underpinnings upon which 19th-century reformers erected the juvenile justice system came under intense scrutiny. As many historically disenfranchised groups—Native Americans, women, African Americans, gay and lesbian groups—demanded and eventually achieved legal and constitutional recognition, there was a remarkable increase in the acknowledgment of human and legal rights. In response, the assumption that suspending the rights of youths in order to assist them toward proper citizenship was rejected.
The End of Rehabilitation
The spread of rights discourse to juvenile justice was most evident in the U.S. Supreme Court cases of In re Gault (1967) and In re Kent (1966). In the 1966 Kent case, the Court highlighted a fundamental contradiction in the juvenile justice system when it stated: “The child receives the worst of both worlds… [they] get neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” A year later, the Court ruled in Gault that juvenile offenders were entitled to state-provided counsel and due process guarantees. During the 1980s, the informality of the court process—an essential feature of the original juvenile justice system—was severely circumscribed.
At about the same time as a rights discourse pervaded juvenile justice, the belief in the malleability of young offenders was increasingly held suspect. The 1974 Martinson report sent shock waves throughout the juvenile justice system as it called into question the juvenile justice system’s very essence—to reform and to rehabilitate. When rehabilitation programs failed to achieve the lofty goals that 19th-century child savers had promised, juvenile justice officials and politicians alike were keen to refocus the intent of justice programs from the needs of offenders to their criminal conduct.
The questions about the efficacy and possibility of rehabilitation and the importance of young offenders’ rights dramatically altered the administration of juvenile justice in the United States. Moreover, these movements forced juvenile justice officials, politicians, and academics to rethink the current structure and operation of the juvenile justice system. While some academics have called for the abolition of a specialized court for juvenile offenders arguing that it is an outmoded institution, others have attempted to reconfigure the system’s objectives in line with changing times.
The Contemporary Situation
The perception that an imminent crisis in youth crime calls for a “tougher” juvenile justice system backed by improved legislation is widely held by some juvenile justice officials, politicians, and members of the general public. The movement toward enacting tougher and more intrusive legislation is not confined to the U.S. context, but has spread throughout the Western world. Consequently, despite declining rates of youth crime since 1995, nations such as Canada and the United States continue to have exceedingly high rates of incarceration for young offenders. Irrespective of almost a century of evidence to the contrary, neoconservative politicians have argued that incidents of youth crime are declining as a result of more intensive and austere approaches to juvenile justice. For example, a headline from the Canadian Alberta Report boasted, “The tide of violence recedes and with a tougher youth policy the next one may be averted” (Anonymous, 1998, p.5).
The increasingly punitive mentality in juvenile justice today is reflected in the expansion of legislation designed to “get tough” with young offenders, the ease with which young people can be transferred to the adult system, and in the amplification of severe penalties. Federal statutes aimed at curbing youth crime through the youth justice system have proliferated. Similarly, each state has moved to enact statutes dealing with juvenile violence, often under “three strikes” policies. Municipalities and city governments that possess only modest lawmaking power have added their own legislative response to the already cramped arena of juvenile justice through instituting curfew ordinances, and anti-gang legislation. The most prominent feature of the majority of these measures is that they are directed toward the violent and hardened offender. That is, legislation, severe penalties, and transfer are intended not for the first-time and nonthreatening offender but for the gun-toting repeat offender.
The basic message delivered by legislative developments throughout the 1990s has been to “get tough” on youth crime and young offenders by giving the youth justice system “teeth.” Canada, for example, has recently enacted the Youth Criminal Justice Act (YCJA) to replace the much maligned Young Offenders Act (1984). There is a contradiction involved when a government replaces one piece of legislation with another. High rates of juvenile crime through the early 1990s were taken as indicators that the juvenile justice system and the legislation upon which the system was based must have been somehow flawed. However, by enacting new legislation to bridge the gap left by ailing existing legislation the fundamental cause of a perceived problem is considered to be the solution. Legislative amendments that are leveled at the problem of youth crime are more often symbolic attempts by governments to quell public fears and demonstrate they are serious about protecting citizens from the risks associated with delinquent adolescents than they are reasoned decisions based on evidence of the most successful interventions.
Violent Offenders
Since the emergence of the juvenile justice system, violent young offenders have presented serious problems for justice officials. The heinous crimes of a select few that invariably become highly publicized media events raise questions in the public’s mind about the ability of the juvenile courts to govern offenders. To this end, all states in the United States have enacted legislation to provide for transfer of youths to adult courts. Despite preexisting transfer provisions that always allowed for certain, particularly violent young offenders to be tried in adult courts, in the past 10 years 40 of the 50 states have passed legislation to ease standards governing judicial waiver to adult court. Without exception, amendments have allowed juvenile court officials to expand the number and type of cases subject to transfer.
Restorative Justice
Recent developments in juvenile justice have not been a one-way process of greater and more secure detention for all juvenile offenders. Instead, there has been a bifurcation in the contemporary juvenile justice approach where serious offenders are managed through more traditional, intrusive, and carceral programs, while first-time offenders are being governed through innovative community-based experiments. Since the 1990s, restorative justice initiatives have become implemented in many juvenile justice systems. Restorative justice comes from the idea that shaming criminal acts by community members allows for the reintegration of deviant actors back into the community once suitable redress has been made. The promise of this approach lies in its ability to bring large numbers of participants together to mend gulfs in community relationships, to create bonds between its members, to form a broader network for reintegrating the victim and offender into the community, and to educate the offender.
A growing body of research indicates that community-based alternatives to custodial treatment of offenders may also have great potential for effecting long-term change in the most serious offenders and difficult-to-treat youths. Several recent studies have confirmed that well-supervised after-school recreational programs substantially reduce recidivism among high-risk juvenile offenders. For example, day reporting centers that are characterized by high surveillance and diverse services and programs are receiving considerable attention as effective alternatives to custody for serious and high-risk offenders.
Race And Gender
The gendering of juvenile delinquency by the youth justice system did not end with the turn of the 20th century and the development of juvenile courts. Girls today are more likely to be arrested for status offenses (crimes that if committed by an adult would not draw legal, cultural, or social attention) and failure to comply with a disposition (what Reitsma-Street [1998], calls the new “status-like” offenses). They are also more likely to receive custodial sentences than their male counterparts (Reitsma-Street, 1998, p. 338).
In recent years, arrest statistics have pointed to a burgeoning “girl problem” where female youth crime is increasing faster than any other offender group. Media reports on growing female crime emphasize the size of the increase rather than the small number of incidents involved (compared to males). Perhaps, this says more about a change in the response of juvenile justice officials to girls’ misdeeds than a change in their actual behavior. While detailed theoretical and substantive inquiry into the extent and cause of this phenomenon is still inconclusive, the numbers of female offenders pale in comparison to their male counterparts. Nonetheless, headlines such as “Sugar and Spice and Veins as Cold as Ice: Teenage Girls Are Closing the Gender Gap in Violent Crime” fuel the perception that young women are out of control.
Conclusive evidence demonstrates that minority youths are overrepresented at all stages of the juvenile justice process. Such discrimination tends to be amplified the further minority youths are processed through the system. For example, in California, like most other states, African Americans are highly overrepresented in young offender detention centers. Of the 13,767 youths detained during 1992 in the state, 5,309 (37%) were of African American heritage compared to a mere 8.7% of the youth population (Austin, 1995). By contrast, Anglo Americans are underrepresented in California’s incarcerated youth population. This trend is repeated across the United States.
The overrepresentation of indigenous youths in the juvenile justice system has become a source of concern to Native peoples, governments, and youth justice officials. Studies conducted in the United States, Australia, Canada, and New Zealand suggest that all social indicators (housing, income, health, crime) point to indigenous peoples being the most dispossessed population in Western society. In the Canadian province of Manitoba, for example, indigenous youths constitute 20% of the youth population and account for 75% of admissions to provincial detention centers (Statistics Canada, 2000).
Conclusion
The emergence of juvenile courts and the resulting juvenile justice system was shaped by Anglo-Celtic child savers and reform-minded elites during the late 19th and early 20th centuries. They promised that a separate system of governance for youths could reclaim delinquent youths and would function in their best interests. Today, the juvenile justice system in the United States only faintly resembles the early juvenile courts that focused primarily on the rehabilitative rather than retributive needs of youths. The recognition of offenders’ rights and doubt cast on the reformability of the offender seriously called into question the very essence of a separate juvenile justice system and continues to shape its current configuration. Questions about the efficacy and possibility of rehabilitation and the importance of young offenders’ rights dramatically altered the administration of juvenile justice in the United States. Moreover, these movements have forced juvenile justice officials, politicians, and academics to restructure the juvenile justice system.
The belief in an imminent crisis in youth crime has fueled calls for a “tougher” juvenile justice system and supported the enactment of new legislation. Recent developments in juvenile justice represent a twofold process of greater incarceration of serious and repeat juvenile offenders and a less intrusive, community-based strategy for first-time, nonserious offenders. How will such a bifurcated philosophy be translated into practice? While there has been much demonstrated success with nonintrusive, alternative measures and diversionary programs, it remains to be seen how the juvenile justice system will operate. Will officials continue to build more secure young offender facilities, or will they invest in new innovative strategies and prevention programs? Can a return to the rehabilitative ideals and reform impulse characteristic of the early child savers be fostered in an environment of fiscal restraint, risk management, and public security, or will the juvenile justice system eventually mirror the adult system? At present, it seems like the situation could go either way, and thus only time, and more research, will tell.