Steven P Lab & John T Whitehead. 21st Century Criminology: A Reference Handbook. Editor: J Mitchell Miller. 2009. Sage Publications.
Juvenile justice is barely over 100 years old but has undergone a range of transformations. It began by introducing a new philosophy of parens patriae into the handling of youthful offenders and has since been transformed into a hybrid of the new philosophy and the due process approach of the adult criminal justice system. Today, juvenile justice is still seeking out its appropriate form and place in society. While it is unlikely to totally disappear anytime soon, it is unknown exactly what it will look like in the future.
The history of juvenile justice is a relatively short one. While deviance on the part of young persons has always been a fact of life, formal, organized societal intervention and participation in the handling of juvenile transgressors has gained most of its momentum in the last 100 to 150 years. Throughout most of history, youthful members of society did not enjoy a separate status that brought with it a distinct set of expectations, behaviors, and privileges. Once an individual reached the age of 5 or 6, he or she became a full-fledged member of society and was expected to act according to the same mandates placed on all “adults.” This extended to the realm of legal sanctioning, where children were viewed as adults and were subject to the same rules and regulations as adults. There did not exist a separate system for dealing with youthful offenders. The law made no distinction based on the age of the offender. While the law allowed for and prescribed harsh punishments, there is some question regarding how frequently the more serious actions were actually used. Indeed, a process of nullification, or refusal to enforce the law against children, took place because of the lack of penalties geared specifically for juvenile offenders.
Changes in how to deal with problem youths emerged in the early 1800s as American society was undergoing major shifts. During this time, industrialization was drawing people to the cities. This movement resulted in overcrowded cities inhabited by people from diverse backgrounds with limited skills and education. Such growing diversity was especially true of cities in the United States, which were attracting immigrants from a wide range of European countries. This population growth also resulted in a great deal of poverty in the cities.
Methods for dealing with offending youths grew out of the establishment of ways to address the growing urban poverty. The primary method for dealing with the poor entailed training the children of the poor. Key to this training was removing children from the “bad influences” and substandard training of their poor parents. The institutions in the early 1800s in the United States were intended to provide skills training to the youths so they would become productive members of society and not threats to others. The failure of these early institutions to adequately address poverty and juvenile offending led to the establishment of a formal system for handling problem youths.
The Juvenile Court
The beginnings of the juvenile justice system are pegged to the establishment of the juvenile court in Cook County, Illinois, in 1899. The legislation that established the Illinois juvenile court reflected the general belief in the ability to alter youthful behavior. First, the court was to operate in a highly informal manner, without any of the trappings of the adult court. Lawyers and other adversarial features of the adult system (such as rules of evidence and testimony under oath) were discouraged. The judge was to take a paternal stance toward the juvenile and provide whatever help and assistance was needed. The emphasis was on assisting the youth rather than on punishing an offense. Second, all juveniles under the age of 16, regardless of whether they had committed an offense or not, could be handled by the new court. The court could intervene in any situation where a youth was in need of help. In practical terms, this allowed intervention into the lives of the poor and immigrants, whose child-raising practices did not conform to the ideas of the court. Third, the new court relied extensively on the use of probation for both administrative functions and supervising adjudicated youths.
The reforms that led to the establishment of juvenile courts also had other influences. One impact was a gradual widening of the juvenile court’s mandate to include intervention for criminal activity, dependency, and neglect, as well as status offenses such as curfew violation and incorrigibility. A second area of change involved the development of new institutions for handling youths who needed to be removed from their families. These institutions closely followed the family/cottage model used throughout the late 1800s, with the greatest distinction being administration by the juvenile court. Third, the court relied on fulltime, paid probation officers. A final major movement was the institution of court-affiliated guidance clinics. These clinics relied on the emerging psychological and sociological explanations for behavior. Central to these explanations was the need for the expert examination of each juvenile in order to identify the unique factors contributing to the individual’s behavior.
The Legal Philosophy of the New System
Perhaps the greatest challenge to the growth of juvenile justice entailed debate over the philosophy of the court and the question of a juvenile’s constitutional rights. Critics of the court and earlier interventions often claimed that the state was subjecting juveniles to intervention without regard to their rights and those of the family. In many instances, the state was forcibly removing a youth from his or her parents’ custody. These new interventions were viewed as an abrogation of the family’s position in society. However, the problems of constitutional rights and the new juvenile justice system were deemed inconsequential compared to the possible benefits that could accrue from intervention. Indeed, the state relied on the doctrine of parens patriae, or the state as parent, for justification of its position.
The case Ex parte Crouse (1838) stated that the Bill of Rights did not apply to youths and argued that the public’s interest in the education of its members gave it the right to intervene despite the wishes of the parents. In essence, the state could intervene, regardless of the reason, if it found that the child was in need of help or assistance that the parents and family could not or would not provide. This belief in the court’s right to intervene at any time, providing the goal was to help the youth, remained largely unchallenged until the late 1960s.
Challenges to the parens patriae doctrine through a growing number of court cases in the late 1960s and early 1970s were signals of major changes in society’s approach to both juvenile misbehavior and adult criminality. Cases including In re Gault (1967), In re Winship (1970), Kent v. United States (1966), and McKeiver v. Pennsylvania (1971) challenged the good intentions of the juvenile court and introduced the need for providing some constitutional due process protections to youths. In addition, the strong reliance on and belief in rehabilitation and treatment that dominated throughout the 20th century were joined by retribution, just deserts, and deterrence in the juvenile justice system.
Despite these changes, parens patriae remains the key philosophy underlying juvenile courts in the United States. This is illustrated in an inspection of the “purpose clauses” for juvenile courts found in state statutes. There are five general categories of juvenile court purpose clauses—Balanced and Restorative Justice clauses; Standard Juvenile Court Act clauses; Legislative Guide clauses; Punishment, Deterrence, Accountability, and Public Safety clauses; and Traditional Child Welfare clauses (Griffin, Szymanski, & King, 2006). In only 1 of the 5 categories (Punishment, Deterrence) is parens patriae largely excluded and the emphasis shifted to an adult court/criminal law orientation for the juvenile court. The other four categories maintain parens patriae as at least a key component (if not directly named) in addressing problem youths.
The shift in juvenile justice to a more adversarial, due process model elicits a wide range of problems and issues within the system. Among these is the introduction of attorneys (on both the prosecutorial and defense sides), the transfer or waiver of youths to adult court processing, divesting the court of jurisdiction over status offenders, and various transformations in the juvenile court itself.
Attorneys in Juvenile Court
The introduction of attorneys to juvenile proceedings raises several concerns, among which is the availability of attorneys, their role in the court, and their effectiveness. First, it is important to note that many juveniles do not have attorneys. It is not uncommon for juveniles to waive their right to an attorney, often because they do not fully understand their rights, especially the importance of the right to legal representation. When juveniles do utilize an attorney, they often rely on public defenders who are burdened by very high caseloads that can range from 360 to 1,000 cases per defender (Jones, 2004). The public defender system often faces problems of insufficient funding, lack of training, high turnover, low prestige, and low salaries. Low pay rates in juvenile justice do not help to attract or retain competent attorneys. In addition, the juvenile court (often called “kiddie court”) is not considered prestigious, and judges may pressure attorneys into taking cases and cooperating.
Many public defenders and private attorneys are reluctant to fight as hard as possible for all youthful defendants, even those who have admitted that they are factually guilty. They argue that such advocacy is inappropriate when the goal is to help the youths rather than punish them. In juvenile court, some attorneys and judges worry that strong advocacy can result in an outcome where a child who “needs help” will not get it because a failure to establish a delinquency petition leaves the court with no jurisdiction over the child. As a result, at least some attorneys assume a concerned adult role rather than a zealous advocate role, encouraging youths to admit to petitions in cases in which an adversarial approach may have resulted in a dismissal of the petition. In a survey of 100 court workers in three juvenile courts, Sanborn (1994) found that 8 out of 10 workers thought that attorneys gave inadequate representation. In fact, 1 out of every 3 was of the opinion that attorneys engaged in behaviors that undermined a fair trial for their juvenile defendants. In addition, about 25% of the respondents thought that defense attorneys would not vigorously represent their youthful clients, and 29% claimed that attorneys acted like guardians rather than zealous advocates.
One qualitative study indicated that attorneys expressed considerable concern for their youthful clients but that they were not always sure of the correct course of action. Attorneys felt that their youthful clients were often passive about decisions such as pleading guilty, and thus the attorneys were unsure of who was making the decisions and the degree to which the youths were making informed choices (Tobey, Grisso, & Schwartz, 2000).
The increased participation of attorneys in the juvenile system is also evident in the growth of prosecutorial participation. Where the initial decision on whether to file a petition and detain a youth traditionally rested with the intake officer, today these decisions often require the approval of the prosecutor. The prosecutor’s approval of the probation officer’s decision to file a petition ensures that the legal criteria exist for a properly authorized petition. The prosecutor checks the legal wording of the petition, determines that enough evidence is available for establishing the petition (finding the delinquent or status offender “guilty”), and makes sure that the offense occurred in the court’s jurisdiction and that the child was of proper age at the time of the offense.
Because of the importance of such legal criteria and because of the growing emphasis on more punitive juvenile models, some jurisdictions have turned away from the traditional probation officer model of intake to models in which the prosecutor is either the first or the sole intake decision maker. Such models are consistent with more legalistic views of juvenile court in which the state has abandoned the traditional parens patriae philosophy.
A further development is that the prosecutor is now taking on increased responsibility in juvenile cases as more and more states are allowing prosecutors to file cases directly in adult criminal court. In addition to the traditional waiver (transfer), several mechanisms allow prosecutors to proceed against juveniles in criminal court: concurrent jurisdiction; statutory exclusion; presumptive waiver; reverse waiver; and once an adult, always an adult statutes. Bishop (2000) estimates that approximately a quarter million youths under 18 were prosecuted as adults in 1996.
Research has shown some interesting results concerning the effectiveness of attorneys in juvenile court. Recent American Bar Association investigations of juvenile courts produced several disturbing findings. First, significant numbers of youths did not have representation, and many others had ineffective counsel due to lack of preparation or training. For many youths who have attorney representation, the quality of that representation is questionable. At detention hearings, attorneys often have little chance to confer with their juvenile clients and are not familiar with alternatives to detention. Most cases are resolved by pleas, and attorneys see many courts as simply interested in dispensing treatment or punishment. Probation officers also make disposition recommendations with little challenge from attorneys. At disposition, many attorneys simply do not act as advocates for their juvenile clients. Most cases are handled informally or by plea bargaining, and attorneys have little impact at disposition.
The situation in America’s juvenile courts appears to be that some attorneys are adversarial, some are still traditional and act as concerned adults, and some are in between the two extremes. Furthermore, in some states, many juveniles are not represented by attorneys. One frequent problem is simply that many juveniles waive their right to an attorney. This state of affairs raises the issue of which is the best approach: zealous advocate, concerned adult, or some compromise between the two alternatives.
The chief advantage of the zealous advocate model is that it is probably the best insurance that only truly guilty youths will come under court jurisdiction. Since the attorney does not pressure the child to admit to the petition (plead guilty), there is less danger that the court will attempt some type of intervention program with youths who are not really guilty. An added advantage is that this approach may well generate the most respect from juveniles for the court system. Fewer youths will feel that they have been betrayed or tricked into something that some adult thought was best for them, despite their own wishes.
The biggest danger of the zealous advocate approach is that it may contribute to what Fabricant (1983) calls benign neglect. That is, since many youths appearing in juvenile court come from families wracked with problems, such as low income, public assistance, or broken homes, they need assistance. An adversarial approach may prevent these children from being railroaded into juvenile prisons or other types of intervention due to insufficient legal defense. That adversarial approach, however, does nothing about the real problems faced by these children in their homes and their neighborhoods.
The advantage of the concerned adult model is that it seeks to address the problems of the child that presumably led the child into delinquency. It also focuses on the needs of the individual child rather than applying a one-size-fits all punishment based solely on the criminal act that took place. The problem is that this helping philosophy has been the rationale of the juvenile court since 1899, which unfortunately has not met with success.
Transfer/Waiver to Adult Court
The shift away from parens patriae and toward due process is evident in steps that emphasize punishment. Some states have adopted determinate sentencing statutes with an emphasis on penalties that are proportionate to the seriousness of the offense. Some states have enacted mandatory minimum provisions. This means that if the judge commits a child to the state youth authority, the law dictates that the youth must serve a certain minimum amount of time. Some states have adopted dispositional guidelines or suggested sentences for most adjudicated delinquents. Unless a case has some unusual factors, judges are supposed to sentence within the ranges stipulated in the guidelines.
Perhaps the ultimate example of this trend toward punitiveness is the move by many states to expand provisions for processing juveniles in adult criminal court rather than juvenile court. The decision to process a youth in adult court is a crucial one because it makes the juvenile subject to adult penalties such as lengthy incarceration in an adult prison and results in the creation of an adult criminal record, which is public and may hinder future opportunities for employment.
There are several methods that states use to place juveniles into adult court jurisdiction: transfer or waiver, statutory exclusion, prosecutorial waiver, and lowering the age of juvenile court jurisdiction. Traditionally, waiver or transfer was the primary method to place juveniles into adult criminal court. In 2004, a total of 46 states and the District of Columbia had statutes allowing judicial waiver (Griffin, 2005). The waiver decision is made at a hearing, which is analogous to the preliminary hearing in adult court. At a waiver hearing, the prosecutor must show probable cause that an offense occurred and that the juvenile committed the offense. In addition, the prosecutor must establish that the juvenile is not amenable to juvenile court intervention or that the juvenile is a threat to public safety. An example of nonamenability would be the case of a youth who is already on parole from a state training school for an earlier delinquent act who then commits another serious offense (e.g., armed robbery). In 2000, approximately 5,600 juveniles were waived to adult criminal court. This was considerably below the peak number of 12,100 cases waived in 1994. Forty percent of waived cases in 2000 involved a personal offense, and 36% involved a property offense (Puzzanchera, Stahl, Finnegan, Tierney, & Snyder, 2004).
Statutory exclusion, also called legislative waiver, means that state legislatures rule that certain offenses, such as murder, automatically go to adult court. In 2004, a total of 29 states had exclusion laws (Griffin, 2005). The list of offenses that are excluded from juvenile court jurisdiction typically includes murder, aggravated sexual assault, robbery with a firearm, and gang-related felonies.
Prosecutorial waiver (direct file/concurrent jurisdiction) is another method for placing juveniles into adult criminal court. State law gives juvenile court and adult court concurrent jurisdiction over certain cases. Depending on the offense, the age of the offender, and the youth’s prior record, the prosecutor decides whether to file the case in juvenile or adult court. In 2004, prosecutorial waiver (concurrent jurisdiction) was available in 15 states and the District of Columbia (Griffin, 2005). Another way to direct juveniles to adult court is for state legislatures to lower the maximum age of juvenile court jurisdiction.
It should be noted that 23 states allow for reverse waiver. This means that the criminal courts can return certain cases that they received due to mandatory judicial waiver, legislative exclusion, or prosecutorial waiver to juvenile court. It is also important to note that 31 states have “once an adult, always an adult” provisions. This means that all or certain categories of youths placed in criminal courts must automatically be processed in adult court for any subsequent offenses.
Still another development in this direction is blended sentencing. In blended sentencing, either the juvenile court or the adult court imposes a sentence, which can involve the juvenile or the adult correctional system or both correctional systems. The adult sentence may be suspended pending either a violation or the commission of a new crime. Fifteen states have juvenile blended sentencing schemes (the juvenile court imposes sentence), and 17 states have criminal blended sentencing laws (the criminal court imposes sentence) (Griffin, 2005).
These various transfer alternatives make it more and more likely that youthful offenders will be handled in the adult system. This action is counter to parens patriae but very much in line with public sentiments for harsher punishments regardless of the age of the offender. The “get tough on crime” movement has greatly impacted the juvenile justice system.
The Case of Status Offenses
Nowhere is the parens patriae philosophy more evident than in the juvenile justice system’s intervention with status offenders (those who committed offenses that were only deemed crimes because of the offender’s age [status]). The rationale underlying this activity is to keep kids from progressing from these minor indiscretions to actual criminal behavior. While the juvenile justice system is no longer supposed to incarcerate youths for status offenses (although there are some exceptions to this fact), the system is still involved in working with these youths. Over the course of the past 40 years, there have been increasing calls for the juvenile justice system to completely divest itself of working with status offenders.
As states choose to shift more and more youths to adult court, should it continue to exercise control over disobedient, runaway, and truant adolescents? The state of Washington has opted to eliminate jurisdiction over status offenses. Maine has written full divestiture into law. Most states have retained jurisdiction over status offenses but implemented policies of deinstitutionalization (stopped confining status offenders in state institutions). In many places, private drug treatment and mental health facilities have stepped in to fill the void that juvenile court previously occupied.
Despite such efforts, status offenses and status offenders continue to take up a considerable portion of juvenile court time and effort. In 2005, juvenile courts handled an estimated 150,600 petitioned status offense cases, an increase of over 30% since 1995. Despite more than a decade of discussion about ending juvenile court jurisdiction over status offenses, approximately 11,000 youths were adjudicated status offenders and placed in out-of-home placements in 2005 (Puzzanchera & Sickmund, 2008). Concerns over intervening with status offenders have engendered a great deal of debate about whether the juvenile justice system should divest itself of jurisdiction or not.
There are several arguments in favor of complete divestiture. First, divestiture would allow the juvenile court more time and resources to deal with juvenile delinquents—especially violent and chronic delinquents. Since the court would not have to process or supervise status offenders, probation officers, prosecutors, public defenders, judges, and correctional program employees would be able to focus on more serious delinquents. Second, the elimination of status offense jurisdiction would prevent any possible violations of the due process rights of status offenders, such as being prosecuted for very vague charges. For example, how disobedient does a child have to be before he or she is “incorrigible,” or how truant before he or she is eligible for a truancy petition? Status offense statutes typically are unclear and vague. Third, elimination of this jurisdiction would recognize the reality that juvenile courts are not adequately staffed and equipped to deal with status offenders. Most probation officers often have only bachelor’s degrees and are not qualified to do the social work and psychological counseling necessary to assist troubled teenagers and their families. Thus, status offenders should be diverted to private agencies with trained social workers and counselors who are better equipped to handle the complex problems of these youths and their families. Furthermore, eliminating juvenile court jurisdiction would force any intervention to be voluntary, which some argue is the proper way to deal with status offenders.
Another argument for elimination is that jurisdiction over status offenses has deteriorated the role of families, schools, and other agencies that traditionally handled, or should have handled, behaviors that fall under the rubric of status offense. Instead, status offense laws have allowed schools to run inadequate and boring programs that promote truancy and, in turn, blame parents and children for the problem. Instead of petitioning youths to juvenile court, schools should be improving instructional programs or offering innovative approaches such as alternative schools such as those where children attend school half a day and then work half a day for pay. In other words, prosecuting status offenders often is a blame-the-victim approach that ignores the real causes of the problems: inferior schools, ineffective parents, and insensitive communities.
Many commentators, however, believe that juvenile court jurisdiction over status offenses is both desirable and necessary. Proponents of continued jurisdiction contend that parents and schools need the court backing to impress adolescents with the need to obey their parents, attend school, and not run away from home. For example, repeal of status offense jurisdiction over truancy would remove the force of law behind compulsory education and allow youths to avoid school with no legal recourse by the schools or parents. Second, proponents of court jurisdiction argue that private agencies in the community will not handle (or will not be able to handle) all of the status offense cases if the juvenile court cannot intervene. Private agencies intervene only with willing clients, and many status offenders taken to such agencies simply refuse assistance. Moreover, some agencies do not provide the services they claim to provide.
Proponents also contend that status offenders often escalate into delinquent activity, and they note that truants are linked with the commission of a range of criminal offenses. Therefore, these proponents claim that early intervention can prevent current and future delinquency. This escalation hypothesis, however, is controversial. While some proportion of status offenders does indeed escalate or progress, most do not. Hence, it is questionable whether all status offenders should be subject to juvenile court jurisdiction. A similar argument is that many status offenders become involved in very dangerous situations that can cause serious harm to the child. For example, runaways are often found to be heavily involved in drug offenses, property crimes, and acts of prostitution to support themselves. Proponents of court jurisdiction argue that it might prevent some children from running away and becoming involved in associated dangerous behaviors. A related argument is that since states intervene with adults to protect them from harmful behavior (such as drug use), the state should protect juveniles from the harmful consequences of their actions.
Another argument in favor of continued jurisdiction is that it prevents status offenders from being processed as delinquents. That is, where divestiture has occurred, there is some evidence that states have turned to treating status offenders as minor delinquents. There is concern that total removal of status offense jurisdiction from juvenile court may weaken the argument regarding why there should be a juvenile court at all. Instead, it may be possible to just move “delinquents” to the adult criminal court. The removal of status offense jurisdiction, with a concentration on delinquency only, may lead to a view of the juvenile court as concerned with crime only and, hence, a belief that adult criminal courts can exercise that function. Thus, removal of status offense jurisdiction may very well be the beginning of the end of the juvenile court.
Unlike a decade ago, the emphasis is not so much on the status offender as a distinct problem, but on those risk factors that can lead to serious, violent, or chronic delinquency. Attention to reducing risk factors and enhancing protective factors is considered to be the way to prevent such problematic delinquency. The juvenile justice system can play a strong role in addressing risk factors and encouraging activities that assist status offenders.
Proposals for Reforming Juvenile Court
The juvenile justice system continues to face calls to reform itself in light of significant levels of juvenile delinquency and its apparent failure to address youthful misbehavior. The reforms range from returning to the promise of parens patriae, to criminalizing the juvenile court, to abolishing the juvenile court altogether. These and other suggested reforms mean that the juvenile system is constantly buffeted by opposing forces.
Rehabilitating the Rehabilitative Parens Patriae Court
One approach to the problems of the juvenile court is to try to return to the rehabilitative and parens patriae roots of the court. Reformers who support this option think that the failures of juvenile court are failures of implementation: The juvenile court has not delivered the rehabilitation that it initially promised. A major factor behind this failure of implementation is lack of funding. Legislators have not provided the money needed to help youths obtain education, counseling, family assistance, and vocational training. The assumption is that if juvenile courts received adequate funding and if they followed the advice of the research on effective rehabilitation programs, juvenile court could be the ideal youth court envisioned by the Progressives at the beginning of the 20th century. Juvenile court judges could act like concerned parents trying to help children.
Numerous commentators advocate both early intervention and the use of proven rehabilitation principles. They urge the use of verified risk assessment techniques so that the court can identify and focus on youth most likely to become serious, violent, and chronic offenders, rather than wasting efforts on the least serious offenders who will not offend again. In addition, they support efforts such as graduated sanctions, matching youths and interventions, gender-specific programming for girls, culturally appropriate programs for minority youths, family interventions, and the elimination of transfer to adult court.
Feld (1999) points out flaws with the argument that juvenile court failure is simply a failure of implementation and that all that is needed is a rededication to the original rehabilitative ideals of juvenile court. Feld agrees that adequate funds have not been devoted to juvenile court, but he argues that funds will always be inadequate. One reason is that there is “pervasive public antipathy” to helping the poor, disadvantaged, disproportionately minority youths who are the clients of juvenile court. Another reason is that since committing a crime is the condition for receiving “help” from juvenile court, there is a built-in punishment focus. Feld argues that providing for children is a societal responsibility, not just a responsibility of the juvenile justice system. In fact, the mere existence of the juvenile system is an excuse or alibi for not providing for poor, minority youths.
Feld (1999) also argues that juvenile court does not provide procedural fairness to children. Traditionally, some of the procedural protections of adult court, such as the right to a jury trial, have been denied children on the justification that the juvenile court was not a punitive court like adult court. Even worse than denying procedural protections, juvenile courts have treated children in similar circumstances who commit similar offenses in unequal and disparate fashion. This individualized handling was originally justified based on the supposed rehabilitative foundation of juvenile court. But since juvenile court is punitive and does not provide rehabilitation, this denial of due process safeguards makes juvenile court unfair and unjust. In summary, Feld thinks that efforts to return the juvenile court to its rehabilitative ideal are doomed to failure.
A Criminalized Juvenile Court
A second possible solution to the problems of the juvenile justice system is to “criminalize” the juvenile court—to attempt to make it a scaled down version of adult criminal court. Two things need to be done to accomplish this. First, a criminalized juvenile court would entail providing juveniles with all the procedural protections of criminal court. Thus, children would have the right to a jury trial and would have fully adversarial defense attorneys, not attorneys who often slip into the role of a concerned parent trading off zealous advocacy for promises of treatment. A second action that needs to be taken to transform juvenile court into a criminal court for youths would be to scale down penalties out of concern for the reduced culpability of children. Sentences would be shorter in such a juvenile court compared to adult criminal court. This reform was suggested about 30 years ago by the American Bar Association and the Institute of Judicial Administration.
The major problem with the suggestion of a criminalized juvenile court is that it may not satisfy calls for a more punitive approach to juvenile offenders. Critics of the current juvenile justice system do not want reduced penalties; they want adult penalties for what they perceive as adult offenses. Such critics contend that violent offenses indicate culpability and should be punished with lengthy prison terms.
Abolishing Juvenile Court
Some critics feel that the problems of juvenile court are too extensive and too fundamental to be fixed and that it is time to abandon the sinking ship of juvenile court. Since juvenile court provides neither help nor crime control, it should be abolished. In its place, Feld (1999) proposes adult criminal court for all, both juveniles and adults.
Adult court would mean that juveniles would receive adult procedural protections. Juveniles would have the right to a jury trial, and defense attorneys would act as zealous adversaries. At the same time, Feld (1999) argues that juveniles should still get shorter sentences because shorter sentences have been a saving feature of the juvenile system and they allow youths who have made mistakes to still have a chance at a normal adult life. He fails to note that adult court sentencing for juveniles would also require some type of protection of the youth’s record. In the juvenile justice system, adjudications and dispositions do not count against the individual. In other words, the youths can legally say that they have not been “arrested” or “convicted.” Such legal protections against arrest and conviction records can be extremely important if one is applying for a job, college, or the military.
Opponents argue that many juveniles are now handled in adult court, and the results have been harmful for juveniles. They contend that juveniles actually receive fewer due process protections in adult court than they would in juvenile court. Instead, juveniles are simply getting punishment in adult court, not treatment.
Some critics have tried to deflect concerns about overly harsh sentences in the adult system by suggesting that youthful offenders receive some form of reduced sentences. The problem with suggestions of discounted sentencing for youths in adult court is that even discounted sentences might not be much of a bargain. For example, if a life sentence is equivalent to a sentence of 50 years, a 16-year-old processed in adult court and receiving a 50% reduction of an adult sentence would still stay in prison until age 41. Thus, even with a youth “discount,” youths processed in adult court would pay a heavy price to leave juvenile court where the maximum sentence is until age 21.
Creating a New Juvenile Court
Still another suggestion is to make a new juvenile court. Noriega (2000) suggests the creation of a new juvenile court that has two branches: one for children and one for adolescents. The children’s court would be rehabilitative and would presume that children do not have criminal responsibility. The adolescent court would presume partial culpability and would be more punitive than the children’s court. Waiver would be by judicial hearing only. There would be no prosecutorial or legislative waiver, and waiver would be only to the next step. Thus, children could only be waived to adolescent court, and only adolescents could be waived to adult court. Juveniles (children and adolescents) would not be allowed to waive their right to counsel. Noriega’s reasoning for this is that children and adolescents are generally presumed not competent. Since they are not allowed to enter into contracts, cannot legally drink alcohol, and cannot vote or drive (until late adolescence), it is a logical extension that they be barred from making the decision on whether to waive their rights in court.
An attractive feature of this proposal is that it offers a more complex and more realistic view of child development. Instead of assuming that one day a juvenile is a child and the next day he or she is an adult, it recognizes the intermediate stage of adolescence. The impact of this approach is also probably more realistic than the results that would emerge from abolishing juvenile court and letting adult court handle juvenile matters. Adult courts are likely not going to be as caring and protective or concerned about youth discounts as advocates for that approach hope.
A Restorative Justice Juvenile Court
Some commentators suggest that now is the time to forge a new path for juvenile court. Namely, they propose adopting a restorative justice model in the juvenile justice system. This represents a radical rethinking of the role of juvenile court. Instead of sanctioning and supervising offenders, the role of the court would be to build community so that neighborhoods can better respond to and also prevent delinquency. Communities would be more involved in sentencing through community panels or conferences or dispute resolution programs. Communities would return to their role of being responsible for youths.
Examples of this approach can be found in many communities. Young offenders are involved in service projects such as home repair for the elderly and voter registration drives. In many places, offenders are paying victim restitution out of wages from public service jobs. In Oregon, offender work crews cut firewood and deliver it to the elderly. More than 150 cities are utilizing victim–offender mediation. In Colorado and Florida, offenders work with Habitat for Humanity building homes for lower-income families. In Florida, probation officers are walking neighborhood beats to help promote local guardianship of communities. In Boston and Florida, probation officers are helping police monitor probationers at night.
A positive feature about this proposal is that many restorative justice programs are already in place. Thus, this is not a hypothetical proposal. As noted, numerous communities already are working at restorative justice. A major question, however, is how far restorative justice can go. How willing are citizens to assume the responsibilities that restorative justice would give them in deciding cases and monitoring sanctions such as community service? If people are not available to staff the restorative justice programs, they will not work. The answer to this question is that restorative justice programs are thriving in communities throughout the United States, and they are gaining momentum within both the juvenile and criminal justice systems.
Another alternative to the traditional juvenile court is teen court. Here, the philosophy is based on restorative justice. Youths act as judges, attorneys (prosecutor and defense attorney), and jury members in cases involving status offenses, misdemeanors, and occasionally low-level felonies. The most common penalty is community service. Other sentences may include teen court jury duty, writing essays about offending, writing apologies to victims, community service, and monetary restitution. As of 2002, it was estimated that there were over 800 teen court programs in operation, handling over 100,000 cases per year, making them a primary diversion option (Butts, Buck, & Coggershall, 2002).
Teen court is not intended to deal with serious delinquency. Rather, it appears to be an alternative method for dealing with either status offenses or minor delinquent acts such as shoplifting or problems with alcohol or marijuana. Research has shown that these courts are capable of reducing recidivism when compared to normal court processing.
Another option for reforming the juvenile court or diverting youths out of the justice system is the use of juvenile drug courts. In these courts, the judge, prosecutor, and defense attorney collaborate as a team with drug treatment specialists. Like adult drug courts, juvenile drug courts attempt to intervene in both the criminal activity and the drug usage of clients. The courts use treatment, coordination, and extensive monitoring. The youths must appear in court frequently so that judges can monitor progress and offer encouragement or admonish the juveniles. There is frequent drug testing and there are penalties for failing to test negative. Sanctions for youths who are not following the rules can range from a warning; to an order to write a book report or paper; to doing household chores; to fines, community service hours, or even detention. There are also incentives such as the dismissal of charges and the termination of probation requirements upon graduation. Other rewards include verbal praise and various incentives such as gift certificates and tickets to local events. Drug courts usually celebrate completion with a graduation ceremony in the court that may include additional positive feedback such as providing graduation gifts to the youths.
One problem with drug courts is that they may be reaching the wrong population. If drug courts are actually intended for drug-dependent or addicted youths, they are not capturing many youths with severe drug problems. Much like the “war on drugs” in general, drug courts often paint a wide stroke that takes in more than is necessary. This means that the court is focusing on minor offenders who may be better left alone or handled in a less intrusive fashion. Society worries so much about adolescent drug use that the juvenile justice system overreacts and does too much. The “jury is still out” on the question of whether drug courts have positive effects such as reducing recidivism and drug usage. Although there are studies that claim to have had a positive result, the findings are not yet settled.
Juvenile justice faces an uncertain future. Despite this fact, it continues to operate (at least in part) under the parens patriae philosophy upon which it was built. The system now incorporates elements of due process and adapts to the changing demands placed on it. There is little doubt that this metamorphosis will continue in the future.