Juvenile Justice: Putting It in Perspective

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Learning Objectives After studying this chapter, you should be able to accomplish the following objectives:

▪ Summarize how early philosophies and religion shaped the treatment of children both before and during the Colonial Period.

▪ Describe the shift in juvenile justice during the Colonial Period.

▪ Identify the key features of the Refuge Period.

▪ Explain how the juvenile and adult courts became distinct during the Juvenile Court Period.

▪ Analyze the evolution of juvenile rights during the Juvenile Rights Period.

▪ Describe the rationale and policies of the “get-tough” movement during the Crime Control Period.

▪ Evaluate the current changes that are taking place in the juvenile justice system.

2The Historical Context of Juvenile Justice

BOSTON GLOBE/Associated Press

Chapter Outline 2.1 Introduction

2.2 The Early Years (to 1600)

▪ The Code of Hammurabi

▪ The Role of Religious Institutions

2.3 Colonial Period (1600s–1800s)

▪ The Age of Enlightenment

– The Penitentiary Act of 1779

2.4 Refuge Period (1800s–1899)

▪ Child-Saving Movement

▪ Prison Reform

2.5 Juvenile Court Period (1900–1960)

2.6 Juvenile Rights Period (1960–1980)

▪ Juvenile Rights and the Courts

– Due Process for Juveniles

– Standards of Evidence

– Preserving the Distinctions Between Adult and Juvenile Courts

▪ Juvenile Rights and Legislation

2.7 Crime Control Period (1980–2000s)

2.8 The Current System: Changing Times?

News stories ran with the headline “Beating Children for Jesus?” (Schiffer, 2001). The case involved a small church in Atlanta, Georgia. The church, named the House of Prayer and led by the Reverend Arthur Allen Jr., advocated for tough discipline of the congregation’s chil- dren. The tough discipline took the form of frequent and often public whipping of children for misbehavior, often under the watchful eye of the congregation. The abuse came to the atten- tion of authorities after the children’s schoolteachers began noticing bruises and welts on their arms and chests. As the case unfolded, stories of abuse began to emerge. The most noteworthy included two boys, ages 7 and 10, being held in the air by adults while family members beat them with a wooden switch. Stories of children being beaten for more than 30 minutes with a belt or other devices with full support from the reverend and family members ultimately led to his arrest and the removal of more than 40 children from their homes.

The reverend and church members excused the beatings as “tough love” and argued that beat- ings instilled discipline in children. The reverend was quoted by news agencies as saying, “If we can use milder punishment, then I’m for it. But sometimes it doesn’t work, and I can’t let them just take over the house” (Bryant, 2002). Eventually, most of the children were returned to their homes in exchange for the parents’ agreement that they would not beat their children in the future. Even with police involvement, however, some parents were not swayed. One parent in particular struggled with the authorities’ concern over the beatings, saying, “The Bible told

Section 2.2The Early Years (to 1600)

me, ‘whip them, it won’t kill them.’ So, you know, how can you tell me not to whip my children when they need it, you know. But, I’ll never compromise with the devil. That’s like compromis- ing my soul” (Bryant, 2002). Reverend Allen served a two-year prison sentence for orchestrat- ing the beating of the children in his congregation.

2.1 Introduction The scenario just described may be rare today, but the role of religion in punishing deviance is deeply rooted in the history of juvenile justice. Throughout history we see policies repeat themselves. For example, policies or pun- ishments used in the past commonly come full circle into the future. Think, for exam- ple, about how fashion or music repeats itself. Those industries take from what “worked” in the past and attempt to recre- ate it for a new generation. At the same time, we hope that the industry learns from its failures and avoids those pitfalls in the future. However, as we will see in this chapter, juvenile justice often experi- ences policy cycles that repeat both the good and the bad.

The policy cycles experienced by the juve- nile justice system are often influenced by the social context of the time. Consider, for example, the social context of the 1960s. The 1960s was a period of great social upheaval as our society became more invested in the civil rights of minorities and women but also led to more rights for youth in the juvenile justice system. Changes associated with the civil rights and women’s rights movements came about in part because the political will and social forces existed to make them possible. When examining juvenile justice, we see that social forces of the times have also influenced the philosophy of the system. For example, in the 1980s and 1990s the political and social climate shifted to one that was retributive. As such, punitive interventions like boot camps flourished. Understand- ing the historical context behind the juvenile justice system movement toward punitiveness is crucial. The history of juvenile justice shows that certain policies and ideologies seem to reemerge over time.

2.2 The Early Years (to 1600) The current juvenile justice system includes a fairly comprehensive set of laws defining the criminal behavior of juveniles. In addition to delinquency, a series of laws exist that govern the abuse, neglect, and abandonment of children. Abuse may be physical, sexual, or emotional.

akg-images/SuperStock The civil rights movement, led by Dr. Martin Luther King Jr., was realized in its time due to political and social forces at play in the 1950s and 1960s. Similarly, social forces have historically dictated trends and philosophies within the juvenile justice system.

Section 2.2The Early Years (to 1600)

However, young people have not always been afforded rights and considerations. In fact, the earliest set of laws governing children didn’t include protections for youth.

The Code of Hammurabi The first comprehensive set of recorded laws is referred to as the Hammurabic Code. This code was developed by King Hammurabi of Babylon in 1750 BCE. Although some disagree about whether the code represents the first formal set of laws, the code is considered to be the most comprehensive attempt at categorizing behavior. The laws were designed to regu- late not only blatant criminal behavior (e.g., murder, violence) but also business and property transactions (e.g., “If a patri- cian [nobleman] has stolen ox, sheep, pig, or ship, whether from a temple, or a house, he shall pay thirtyfold”), marital relations (e.g., “If a man’s wife be caught lying with another, they shall be strangled and cast into the water”), and also parent-child relationships (e.g., “if a son has struck his father, his hands shall be cut off”). The laws specific to parent-child relationships are the earli- est laws governing the behavior of juveniles. For example, the laws set forth a clear delinea- tion of parent and child. Children who disobeyed their parents could be abandoned, maimed, or even killed. (Visit http://www.commonlaw.com/home/legal-history-and-philosophy/ code-of-hammurabi for specific examples.)

The spirit of these laws is compatible with the early view of children as property of their parents. This concept of ownership is referred to as patria potestas. Patria potestas gives the father control over all family matters. Parents, especially fathers, were granted the right to do as they wished with their children. As a general rule, children were seen as laborers who would work for their families, or they were often sold into servitude. During this time, chil- dren who were not physically well or were of a “bad temperament” were put to death (deM- ause, 1974). Boys were given a higher status than girls, and girls were more likely to suffer abandonment and abuse as a result of this philosophy. The practice of favoring boys is a trend that unfortunately continues in many countries today.

The Role of Religious Institutions Religious institutions, particularly of the Christian faith, were a dominant force in the regula- tion and punishment of criminal behavior in Europe. In the 1300s and 1400s, the church was considered the most important social institution, with criminal behavior characterized as a sin against God. The punishments, which included drowning, hanging, or being burned alive, were intended to rid the criminal of evil. The medieval punishments, used on juveniles as well, often had one thing in common: brutality. Some of the more torturous policies are listed in Spotlight: Torture Devices. Although there are few accounts of how many juveniles were put

iStockphoto/Thinkstock The Code of Hammurabi is the earliest collection of laws addressing criminal punishment, business, and the treatment of juveniles by their parents through legal procedure. This is a piece of the tablet itself from Babylon in 1750 BCE.

Section 2.2The Early Years (to 1600)

to death or tortured through these means, historians indicate that death sentences were not uncommon for juveniles found guilty of minor criminal behavior (Sanders, 1970).

Primitive forms of incarceration existed during this time as well. Confinement as a form of punishment could be accomplished through a variety of mechanisms, including underground mines, cages, or deteriorated buildings. Historians indicate that these early forms of incarcer- ation housed men, women, and children together in deplorable conditions. Disease and abuse were common but often ignored or overlooked as those who were punished were consid- ered sinners, and so their suffering was considered justified. What’s more, the confined were required to fight for food and basic needs for survival. Wardens were not seen as providers but rather managers or keepers of the captured. For the most part, incarceration was akin to a death sentence, given the neglect of basic needs and unsanitary conditions that existed in most facilities (Geltner, 2008).

Another commonly used form of confinement was referred to as transportation. As the name suggests, transportation involved transferring criminals to other countries via ships. This form of banishment for criminal behavior is also deeply rooted in religion. Used most frequently in the 1600s, transportation was used to move deviants from Europe to North America via ships. Once they arrived in North America, the convicts were used as slave labor. According to some estimates, thousands of convicts were shipped from England to American colonies each year (Spierenburg, 1995). After the American Revolution, the newly formed United States began rejecting the shipments of convicts from England, which then shifted transportation to Australia. Eventually, every country began to reject the shipments of crimi- nals. At that time, the transportation concept evolved to holding criminals in ships indefinitely. These ships were often anchored off shore and referred to as hulks (Hughes, 1987). There are few estimates of the number of juveniles transported during this time, but evidence suggests that it was common for children to be sentenced to transportation for life (Sanders, 1970).

Religious influences are not as apparent in today’s juvenile justice system, but the church con- tinues to play a role. For example, faith-based programs have become popular in prisons. For

Spotlight: Torture Devices

• Iron Maiden: A wood coffin with spikes on the inside door. Once a person is placed in the coffin and the door is shut, the spikes will stab the person to death. One particu- larly brutal feature was the two spikes placed at eye level that would stab the indi- vidual’s eyes.

• Burned or Boiled Alive: Being burned or boiled alive were common methods used for hundreds of years. Historians indicate that boiling was frequently used in Europe and Germany from the 1300s to the 16th century. Boiling typically involved being dunked into boiling liquid. Others were tied down and placed in vats that were then brought to a boil slowly.

• Rack: The individual would be tied by each ankle and wrist to a wooden wheel or axle. When the axles were turned, the individual would be stretched four ways. The individ- ual would eventually be pulled apart limb from limb.

Section 2.3Colonial Period (1600s–1800s)

example, a program launched in a Texas prison in 1997 called the InnerChange Freedom Ini- tiative teaches inmates values and life skills (see https://www.prisonfellowship.org/about/ reentry-support/innerchange-freedom-initiative/ for more information). These programs teach youth to rely on religion to cope with pressures such as drugs and alcohol (Cullen & Gendreau, 2000). Similarly, Alcoholics Anonymous and Narcotics Anonymous are founded on the principles of a higher power and God.

2.3 Colonial Period (1600s–1800s) During the American Colonial Period, two influences remained constant: the authority of the parent and the role of religion. In many respects, this makes sense in light of the influence of the Puritans in early colonial days. Parents continued to be given wide latitude in dealing with their children by any means including abuse.

Consider, for example, the Stubborn Child Law passed in 1646. The Massachusetts law dic- tated that if a 16-year-old child was rebellious and stubborn, the parents could bring the child to court where the child could receive a death sentence. The spirit and wording of this law is very similar to biblical verses found in Deuteronomy 21:18–21, which states that a child can be put to death for being stubborn or rebellious. Moreover, there are numerous accounts of juveniles still being put to death during this time for minor crimes such as stealing clothing or food (Rothman, 1970).

Although the notion that children were parental property persisted in the Colonial Period, some improvements were made to the practices of incarceration across Europe during this period. For example, the house of correction, or workhouse concept, developed. The work- house concept refers to the idea that people in prisons should engage in hard work and dis- cipline. The workhouse concept retained religious undertones, but the treatment of incarcer- ated people did improve. For example, the emphasis of these institutions rested with the importance of repentance and hard work. During work periods, sinners were to consider their transgressions and repent for their sins (Hirsch, 1992). The institutions were a vast improvement over the earlier insti- tutions in terms of cleanliness; however, more significant reforms were on the horizon.

The Age of Enlightenment An intellectual revolution occurred in the 1700s, particularly in England and France, but eventually in North America as well. The revolution, referred to as the Age of Enlightenment, began a seismic shift in the philosophy of how lawbreak- ers should be punished. The scholars (also referred to as reformers) leading this movement questioned the intended

iStockphoto/Thinkstock Rather than torture criminals for revenge, deterrence theory promoted the use of sanctions and imprisonment. This new stream of thought was made possible by the Age of Enlightenment and led to the Penitentiary Act of 1779.

Section 2.3Colonial Period (1600s–1800s)

goal of the system of punishments of the time and whether a just and “enlightened” society should be deploying torture and brutality on its citizens. They argued that people, particu- larly those accused of less serious crimes such as theft, could be dealt with through a gradu- ated system of sanctions with the same effects (i.e., a reduction of crime). In other words, they argued that less severe sanctions could reduce crime without the social costs that resulted from brutality.

This utilitarianist concept eventually gave way to an influential theory of crime: deterrence theory (see Chapter 3). Deterrence theory originated from the work of Cesare Beccaria and Jeremy Bentham. They argued against the use of brutal punishments that were often justified based on society’s want for revenge rather than prevention of future crime. They proposed that crime could be reduced by making punishments proportionate to the criminal act. Deter- rence theory is based on the following main principles (Devine, 1982; Geis, 1973):

• Laws must be developed for crime to be prevented. Specifically, people must under- stand laws in order to understand the behaviors society values.

• The purpose of punishment is crime prevention, not revenge. • Punishment must be swift, certain, and with a degree of severity that simply offsets

the gains of crime. • Prisons, which housed people of all genders, ages, and crimes committed, should be

abolished in favor of a system that separates people based on these characteristics.

The Penitentiary Act of 1779 One of the more notable prison reformers of the Age of Enlightenment was John Howard, a sheriff in Bedfordshire, England. In the 1770s, Howard inspected local prisons and wrote a book titled The State of Prisons in England and Wales. In this book, he outlined the deplorable conditions of the prisons. The book’s publication, among other events, provided the catalyst for the Penitentiary Act of 1779. The act called for a prison system that was secure, sanitary, subject to inspection, and intended to reform rather than simply punish. To that end, prison- ers were expected to work and receive religious instruction, and were subjected to periods of solitary confinement to repent for their sins. Although these goals overlapped with the original intent of the workhouse concept discussed earlier, the legislation’s focus on inspec- tion and provisions for prisoners (e.g., diet, hygiene, medical care) provided a better context for reformation through hard work (Devereaux, 1999).

In America, the prison system was limited relative to Europe at the time. Punishment in America was more likely to rely on corporal punishment (public hangings, whipping, etc.). That began to change in the mid-1700s, however, when many of the colonial states began adopting policies championed by reformers in England. In particular, several states used the workhouse concept as a means of engaging youth in hard labor and repentance (Hirsch, 1992). Other forms of punishment to emerge for juveniles at this time included indentured servitude, poorhouses, orphanages, and jails.

Although some improvements were made during this time in the American system, reform- ers remained concerned about the treatment of juveniles in the workhouses. Reformers were concerned that youth were still housed with adults and that the focus of incarceration remained highly punitive. The reformers, often referred to as child savers, ushered in a new philosophy of juvenile justice and eventually led to the creation of a House of Refuge. Both

Section 2.4Refuge Period (1800s–1899)

the child-saving movement and the House of Refuge are key features that emerged in what’s known as the Refuge Period.

2.4 Refuge Period (1800s–1899) Prior to the 1800s, American society was largely agricultural in nature. Youth worked family farms and were given a tremendous amount of responsibility at a fairly young age. However, with the Industrial Revolution, families left the farms to work in the factories predominately found in the cities. As children began working in factories, they were taken away from the watchful eyes of their parents. The situation created many issues for juveniles, ranging from exposure to deviance (e.g., accounts indicate that juvenile street gangs flourished at this time; see Johnson, 1979, for discussion) to abuses in the factories where they worked. Child labor laws were not well developed, and children were often forced to work long hours in unsafe and unsanitary conditions. The increase in deviance and the concerns about the welfare of children led to the child-saving movement (McNally, 1982).

Child-Saving Movement The child-saving movement was not lim- ited to the Refuge Period. In fact, the move- ment extended into the Juvenile Court Period as well. The child savers were led by a group of middle-class women who advocated for the welfare of children. In particular, they wanted to give poor chil- dren better opportunities and guide them into a better life. They argued that the sys- tem should consider the needs of the child and focus services on rehabilitation rather than rely on the punitive and adversarial nature of the punishment system of the time. Child savers also wanted to save chil- dren from the negative environments found in many cities. As a result, they advocated for the use of reformatories or institutions that would house juveniles and “save” their souls (Platt, 1969). The reformatories represented a significant shift in how juveniles were being treated and led to substantial prison reforms.

Prison Reform The New York House of Refuge is considered the first juvenile reformatory in the United States. According to the New York State Archives, the New York House of Refuge opened January 1, 1825, with nine children (six boys, three girls) but grew to house nearly 1,700 inmates within a decade. The youth were remanded to serve time indefinitely, and by most accounts the youth often remained at the facility until they reached adulthood. The youth

©Bettmann/Corbis/AP Images During the Refuge Period, the child-saving movement strove to improve rather than punish juveniles. This photo captures North Market Hall Mission School in London, 1850, which sought to reform children and keep them off the streets.

Section 2.4Refuge Period (1800s–1899)

were required to spend most of their time working, developing literacy skills, and receiv- ing religious instruction. You can read more at https://nyprisonorigins.com/nicholas/ house-of-refuge-and-reformatory-life/.

Another famous reformatory, referred to as the Elmira Reformatory, was designed for first- time felony offenders ages 16 to 30. The Elmira Reformatory opened in 1876 and used a mark system, with three levels of classification. The person would begin at a level 2. From there, the residents were required to progress to level 1 in order to gain release. However, they could be demoted to level 3 for poor behavior. So, in order to move from level 2 to level 1, inmates were required to follow the rules, attend school, and work for a period of at least six months. If they refused to follow the rules, residents were moved from level 2 to level 3. At that point, residents would be required to exhibit positive behavior for at least three months before they could progress to level 2 and start the process again (Pisciotta, 1994).

The opening of the Elmira Reformatory came on the heels of the Declaration of Principles, which were outlined by the National Prison Association meetings in 1870. The Declarations were as follows:

• Prison should be for reformation and rehabilitation of the inmate; • sentences would be indeterminate rather than fixed to allow for an assessment of

whether rehabilitation occurred; and • classification of the inmate’s character and problems would take place and guide

reformation. (Cullen, 1995)

Although these reformatories were an improvement over the earlier facilities that simply warehoused juveniles with adults, they came with unintended consequences. For example, much like the earlier interventions for offenders, a central belief for these institutions was that hard work and discipline would rehabilitate the person. Some accounts indicate that the New York House of Refuge used a militaristic regimen of discipline, with children required to engage in strict, long hours of work and corporal punishment given for failure to abide by rules. Similarly, the Elmira Reformatory, though initially heralded as wildly successful, even- tually came under intense scrutiny for its use of corporal punishment and brutality against the residents (Singer, 1971).

The child-saving movement itself also came under criticism for subjecting youth to the same harsh treatments the movement claimed to want to protect them from. Critics argued that many of the juveniles placed in these institutions or under the control of the juvenile court were not necessarily better off for the exposure. The saving of the child typically meant that youth (regardless of their status as either dependent [i.e., abused, neglected and/or abandoned] or criminal) would be subjected to long periods of incarceration. As noted by Ventrell (1998),

It is a mistake to assume that the House of Refuge served as a haven for youth otherwise guilty of serious crime. Those youth were still maintained in the adult system. In the first two years of operation of the New York House of Ref- uge, approximately 90% of the children were housed as a result of vagrancy or minor offenses. And it is unlikely that these children would have been con- sequented without a House of Refuge as such minor offenses tended to go unpunished by the law. (p. 13)

Section 2.5Juvenile Court Period (1900–1960)

In addition, critics argued that upper-class youth were not treated in this manner; rather the child-saving movement was simply a mechanism of religious control asserted over poor youth by the middle and upper classes (Platt, 1969; Ventrell, 1998).

During this period, the courts increasingly enforced the parens patria doctrine (from the Latin, meaning “parent of the nation,” as mentioned in Chapter 1). This doctrine granted the system the right or authority over children whom it deemed in need of its care. Such children could include those who were delinquent, but also those children who were abused, neglected, or abandoned by their parents. The increased involvement of the court system led to the next significant period for juvenile justice, referred to as the Juvenile Court Period.

2.5 Juvenile Court Period (1900–1960) Reforms continued well into the 20th century. In this era, the reform movement was referred to as the Age of Reform or the Progressive Era. The child savers’ reform efforts continued under the Progressive Era. Although they focused primarily on juvenile delinquents and “sav- ing” them from their poor environments, the Progressives were focused on the individualized treatment of the juvenile delinquent. They argued that biological and psychological problems (as well as those in the environment, such as poverty) should be addressed in order to reha- bilitate troubled youth. Most significant, however, was the shift away from moral or religious explanations of crime to a focus on the individual’s biological or psychological health.

Several Progressive reforms emerged in the early 1900s. These reforms include four major interventions, all of which remain in the system today:

• Probation • Parole • Indeterminate sentencing • Establishment of a separate juvenile court

The Progressives believed that rehabilitation would be effective only if the system had mech- anisms in place to ensure the state could gauge what was appropriate for each youth. For example, they advocated for the increased use of community-based probation that would allow delinquents to remain in the community to receive services. Borrowing from the Elmira Reformatory, the reformers argued that release from institutions should be based on good behavior. In that vein, they argued that indeterminate sentencing was needed so that the state could better gauge its progress. For example, indeterminate sentences of varied lengths (e.g., two to four years versus a flat sentence of three years) would enable the state to assess whether juveniles were rehabilitated before they were released (Cullen & Gilbert, 2012).

The creation of a separate court for juveniles represented another significant shift in treat- ment. Although a few states were already processing juveniles separately from adults (e.g., Massachusetts began using separate dockets and trials for juveniles by the late 1870s), the first juvenile court was not formally established until 1899 in Illinois. The creation of this court was authorized under the Juvenile Court Act of 1899. The act provided several guide- lines to regulate the behavior of abused, neglected, and deviant youth, including the following (Sanders, 1970):

Section 2.5Juvenile Court Period (1900–1960)

• A delinquent youth was defined as a child under the age of 16 who violated the established laws of the state, county, or local government.

• A dependent or neglected child included one who was homeless or abandoned, or who did not have proper parental care. A child under the age of 8 who had to sell or peddle items would also be considered under this category.

• The judge should act as a parent or advocate for the child rather than rely simply on punishment.

• Juveniles and adults should be separated for all proceedings. • Juveniles and adults should be kept in separate institutions. • There would be prohibitions on the detention of children under the age of 12. • Probation officers would be appointed who would investigate the youth’s back-

ground and provide case management services.

The juvenile court movement became increasingly popular over the next several decades. By 1925, nearly every state had developed separate processes for juveniles. As a result, more youth were processed through the system than ever before.

At the same time, President Taft estab- lished the Children’s Bureau in 1912. The Children’s Bureau was designated to over- see the health and welfare of children, which included issues such as infant mor- tality, juvenile delinquency, exploited and abused children, and family preservation (Lindenmeyer, 1997). The organization provided grant funding to states in order to tackle some of these important issues. A survey the organization conducted in the early 1920s on the effectiveness of the new juvenile court system, however, found that the courts were not necessarily oper- ating as designed (Roberts, 2004).

Although the juvenile court movement spread rapidly—and maybe because it spread so rapidly—many of the ideals suggested were not realized. For example, the original juvenile court concept was intended to provide separate treatment and rehabilitative services to juveniles in an informal court setting. However, many jurisdictions were unable to provide separate ser- vices. For example, separate facilities for juveniles simply did not exist in some jurisdictions, and the Great Depression led to even further cutbacks for services. Judges were often not well trained on how to handle and rehabilitate youth, and many others were simply not interested in presiding over these cases. As a result, the range of services was inadequate, and most children were subjected to the traditional punishments used before implementation of the juvenile court (Roberts, 2004).

Associated Press In 1934 Katharine Lenroot (left) was head of the Children’s Bureau of the U.S. Department of Labor, and Dr. Martha M. Eliot (right), as assistant chief, was devoted to the child and maternal health division of the bureau. The Children’s Bureau was founded by President Taft in 1912 to review the juvenile court system.

Section 2.6Juvenile Rights Period (1960–1980)

Although initially criticized and challenging to implement, rehabilitation remained a central focus throughout the mid-1900s. The focus makes sense if we consider the social context of the time. Sociological theories of crime predominated during the early 1900s, arguing that the environmental conditions of inner cities and the exposure to delinquent peers could account for most of the criminality occurring at this time. In addition, the advent of the psychological tests used for soldiers after World War I led to the increased use of classification tools to diag- nose and prescribe treatment, popularizing the notion that positive behavioral changes were attainable with thoughtful and measured methods. Finally, California developed the Califor- nia Youth Authority (CYA) in 1941. The CYA was proposed as a radical change in juvenile cor- rections at the time with a focus of prison being used to rehabilitate youth rather than punish them (Greenwood & Turner, 2010).

2.6 Juvenile Rights Period (1960–1980) The Juvenile Rights Period emerged at a time when there was a great deal of social change and unrest in the United States. The 1960s ushered in a movement focused on the rights of individuals. Many people began to question the reach of the juvenile court and whether the parens patria model truly benefited the juvenile. People became increasingly concerned about whether the system (both adult and juvenile) violated the rights of the accused. First, there was apprehension over whether the system’s reach extended too far. In particular, sta- tus offenders, dependent and neglect cases, and criminals were still processed through the same mechanisms in the court system. Second, youth were being processed through the court system without the due process afforded to adults. Finally, there was concern that the sys- tem’s response to serious juvenile delinquents was inadequate. This section examines each of these issues in detail.

Net widening refers to the system’s reach. By criminalizing minor offenses, such as the status offenses, the system casts a wider net over the delinquent behavior of youth. For example, critics questioned the need to treat those who skip school (i.e., truancy) in the same manner as youth who commit more serious delinquent acts. In the 1960s, states began to take signifi- cant steps toward decriminalizing status offenses and better delineating noncriminal behav- ior such as dependency and neglect. For instance, California and New York were the first states to create separate terms to delineate children who commit criminal acts from status offenders and those who are classified as dependent or neglect cases. For example, New York began using such terms as person in need of supervision (PINS). Other states adopted similar terms, including minor in need of supervision (MINS); child in need of supervision (CHINS); juvenile in need of supervision (JINS), and youth in need of supervision (YINS). These terms identify youth who should be considered noncriminal and in need of rehabilitative services rather than punishment.

With regard to status offenses, in 1971, the National Advisory Commission on Criminal Jus- tice Standards and Goals (1973) made recommendations for the entire criminal justice sys- tem. The commission disseminated recommendations for each institution within the system, including the police, courts, and corrections. The specific recommendations pertaining to juveniles included the following:

Section 2.6Juvenile Rights Period (1960–1980)

• Diverting juveniles to treatment programs • Decriminalizing certain offenses, particularly those relating to juveniles • Unifying services for both adults and juveniles

Concerning status offenses, the commission argued that five categories should be given the most priority. In each case, the commission recommended judicial involvement only in cases where the juvenile exhibited a pattern of behavior. For example, the first category, school truancy, should invoke court involvement only when a pattern of truancy warrants a need for services. Similar logic was applied to underage drinking among youth: The court would be involved only if the youth exhibited the need for services. Running away from home is the third category. The commission argued that the court should intervene only when youth are unable to support themselves or have not benefited from other services or intervention attempts. The fourth category, disregard of parental authority, would invoke court involve- ment only when the family’s capabilities to resolve the issue had been exhausted. Finally, the commission recommended that the court not be involved in delinquent acts by a juvenile younger than 10 years of age. Although this is still the case in many states, recall that in Chap- ter 1 we identified six states that do allow for the prosecution of juveniles under the age of 10.

Juvenile Rights and the Courts In addition to net widening, due process rights for juveniles also came under scrutiny. Crit- ics argued that the informality of the juvenile court model, thought to protect the child from harsh formal proceedings, actually deprived juveniles of many of the rights provided in adult courts. For example, juveniles could be kept in the juvenile court system indefinitely under the logic that the system was protecting them. When overcrowding occurred in juvenile facili- ties, youth were simply housed in adult facilities. As a result, several landmark Supreme Court cases changed how juveniles were processed through the system.

Due Process for Juveniles The first set of cases outlined the due process rights of juveniles.

Kent v. United States (1966), 383 U.S. 541 A 16-year-old male defendant was arrested for burglary, robbery, and rape. The juvenile court decided to waive the case to the adult system for processing. Kent’s attorney requested a hear- ing on the matter of the waiver; however, the court did not grant the hearing and remanded the case to the adult court. The juvenile was subsequently found guilty of burglary and rob- bery but was found not guilty by reason of insanity on the rape charge.

In this case, the Supreme Court ruled that the lower court violated the defendant’s rights. The Court noted that juveniles could not be deprived of core due process rights that should be granted to them under the 14th Amendment to the Constitution. In particular, the justices were concerned that juveniles could be remanded to adult court without a fair hearing. The decision granted juveniles the right to a formal hearing, representation at the hearing, and access to the records that would be reviewed by the judge prior to the hearing. The decision

Section 2.6Juvenile Rights Period (1960–1980)

also granted juveniles the right to a written justification for the order. The justification should outline issues that the judges could consider in waiving a juvenile case to the adult court, including seriousness of the crime, violence, maturity of the defendant, and treatment resources available (Carmen, Parker, & Reddington, 1998).

In re Gault (1967), 387 U.S. 1 A 15-year-old defendant was accused of making a lewd phone call. After a brief hearing before the juvenile court, the defendant was remanded to a state reformatory for delinquents. The lawyers argued that the defendant’s rights were violated, given that he received a punitive sanction such as incarceration after an informal hearing.

In this case, the Supreme Court further defined the due process rights guaranteed to juvenile defendants. The Gault decision led to four basic rights. First, defendants have the right to a notice of the charges so that they have adequate time to prepare for the trial. Second was the right to counsel. Defendants have the right to private counsel, or if they are unable to afford counsel, they have the right to a public defender. Third, defendants have the right to confront and cross-examine witnesses. Finally, the Gault decision confirmed that juveniles should be granted the Fifth Amendment right to remain silent and avoid self-incrimination (Carmen et al., 1998).

Standards of Evidence In the next case, the courts expressed con- cern over the informal nature of the juve- nile court.

In re Winship (1970), 397 U.S. 358 A 12-year-old defendant stole $112 from a woman’s purse. He was subsequently found guilty in juvenile court and sen- tenced to a state reformatory for a mini- mum of 18 months that could be extended to his 18th birthday.

The Supreme Court ruled that juvenile court should have to consider the same standard of evidence required in adult criminal cases. At issue was the informal nature of the juvenile court system, which led to cases being handled comparably to civil cases. In particular, the standard of evidence used in juvenile court was one of a preponderance of the evidence rather than burden of proof beyond a reasonable doubt. The preponderance of the evidence standard is considered a lower standard

Belinda Images/SuperStock In the re Winship case, a 12-year-old stole $112 from a woman’s purse and was found guilty. This ruling made it clear that juveniles must be convicted only if the standard of evidence is the same as an adult court case would require.

Section 2.6Juvenile Rights Period (1960–1980)

by which the plaintiff must prove that there is more than a 50% chance that the crime was committed. The burden of proof beyond a reasonable doubt standard means that the evi- dence suggests there is no doubt the person committed the crime. The Court ruled that, in cases where the potential of incarceration existed, evidence against the juvenile defendant must meet the beyond a reasonable doubt standard (Carmen et al., 1998).

Preserving the Distinctions Between Adult and Juvenile Courts In the next set of cases, the Court ruled for maintaining the informality of the juvenile court. The rulings suggest at least partial support for maintaining the juvenile court’s parens patria role.

McKeiver v. Pennsylvania (1971), 403 U.S. 528 In this case, a group of appellants claimed that their request for a jury trial was denied under Pennsylvania law. The Supreme Court was asked to review whether juvenile defendants should have the right to a jury trial.

In this case, the Court preserved one facet of the informal nature of the juvenile court system. In the McKeiver decision, the Supreme Court ruled that juveniles did not have the right to a jury trial. That being said, the Court did not suggest that there should be an absence of jury trials in juvenile court but that the jury trial is not a constitutional right granted to juveniles. Requiring a jury trial, according to the Supreme Court, would alter the inherent nature of the parens patria doctrine, lessening the informal nature of the juvenile court system. The right to bail and the right to a grand jury indictment are other rights not extended to defendants in juvenile court (Carmen et al., 1998).

Breed v. Jones (1975), 421 U.S. 519 A 17-year-old male defendant was convicted in juvenile court of a robbery with a weapon. At the dispositional hearing, the case was waived to the adult court system because the judge felt that there were no suitable facilities for the care of this particular defendant. The juvenile was subsequently found guilty in the adult system on the same charges.

In Breed v Jones, the Supreme Court ruled that juveniles could not be tried in the juvenile court and then be tried again in adult court. This provision against what is referred to as double jeopardy simply means the juvenile cannot be tried twice for the same crime.

Juvenile Rights and Legislation While all of these landmark court decisions highlight the rights of juveniles, several other rel- evant legislative and executive initiatives developed around the same time. First, the Uniform Juvenile Court Act, passed in 1968, detailed standards that the juvenile justice system should follow. The act covered the police, courts, and corrections and argued for the preservation of rehabilitation as the guiding philosophy of the juvenile court. Second, the Juvenile Jus- tice and Delinquency Prevention Act of 1974 called for the deinstitutionalization of status offenders and nonoffenders. In particular, the act called for a “sight and sound separation”

Section 2.7Crime Control Period (1980–2000s)

provision, meaning that juveniles cannot be detained in an institution where they can see or hear adult offenders. This right extended to jails with several exceptions, including the recog- nition that, on occasion, temporary provisions are needed. This act was also amended in the early 1990s to mandate that states receiving funds reduce the overrepresentation of minori- ties in the juvenile justice system (referred to as disproportionate minority contact). Finally, the Office of Juvenile Justice and Delinquency Prevention (OJJDP), created in 1974, acts as a clearinghouse for information related to juvenile justice issues. The agency provides grant funding for a wide range of juvenile justice initiatives.

2.7 Crime Control Period (1980–2000s) The Crime Control Period represented a significant shift away from the rehabilitative nature of the juvenile justice system from the Juvenile Rights Period. During the 1980s, the political and social climate in the United States shifted away from rehabilitation to one of punitiveness. This period is often referred to as the “get-tough” or “penal harm” movement. Some observ- ers would suggest that this movement actually began to recycle long-forgotten policies of the early philosophy of justice for juveniles. History was beginning to repeat itself.

Typical policies included an increase in mandatory arrest and sentencing policies, removal of treatment programs in prison, and the use of punitive strategies such as boot camps and chain gangs. The get-tough policies led to an increase in the use of confinement for juveniles. These punitive policies were justified on the grounds of deterrence. As noted earlier, deter- rence rests on the notion that the system can prevent crime by increasing the certainty, sever- ity, and swiftness of punishment. Proponents claim that people make rational choices based on how much pleasure versus pain they will receive by committing a crime. Logically, then, if the expected pleasure can be offset by punishment, we should be able to deter future crime.

Social trends leading up to the 1980s provided a climate ripe for a punitive approach to crime. For example, violent crime rates increased during the late 1960s and 1970s (Blumstein & Wallman, 2006), and self-report surveys indicated that drug use among teenagers was on the rise (Alberts, Miller-Rassulo, & Hecht, 1991). During this time, counterculture movies about drug use also led people to fear that marijuana use among teens would lead to a life of chronic addictions.

Due to these trends, researchers began to examine the efficacy of rehabilitation. Robert Martinson (1974) argued that “nothing works” when it comes to rehabilitation. He and his colleagues reviewed studies published in the late 1960s and 1970s and concluded that few showed a treatment effect. In other words, few studies showed that rehabilitation programs were lowering recidivism rates. Although Martinson later indicated that some studies showed that certain treatment strategies were effective in reducing recidivism, his “nothing works” statement was championed by those who felt the system coddled the offender rather than focusing on the victim (Cullen & Gilbert, 2012).

In addition to questions of efficacy, the establishment of due process rights (see Section 2.6) spurred a group of reformers called the justice model liberals to argue that the system should

Section 2.7Crime Control Period (1980–2000s)

abandon treatment in favor of preserving the rights of juveniles. In particular, they argued that indeterminate sentences and parole boards should be abolished. Justice model liberals were concerned about the ability of the system (including parole boards and officials who worked in prison) to accurately assess when someone should be released. They felt that the discretion given to correctional officials meant that people were being kept incarcerated lon- ger and, as a result, were having their rights violated (Cullen & Gilbert, 2012). Conservatives agreed, not necessarily out of concern for juvenile rights, but because they felt the system did not sufficiently focus on victims’ rights.

John DiIulio (1995), a Princeton researcher, argued that the system should brace itself for a new kind of juvenile delinquent he termed the “super-predator.” These juve- niles were thought to be gang-involved, intensely violent boys who would roam the streets inflicting mayhem and brutality on the public. As a result of these factors, the juvenile justice system (and the adult system) became increasingly punitive.

The punitiveness of the system could be seen in many ways but especially in the increased use of confinement, which rested on three primary arguments. First, advocates believed that the confinement of juveniles would prevent and therefore reduce social costs associated with delinquency. Second, proponents felt selective incapacitation could be used to reduce crime. For example, if the system could confine the small portion of juveniles who were responsible for a high proportion of criminal behavior, the overall crime rate would drop significantly. Third, juvenile predators were assumed to be unlikely to respond well to community-based treatment programs and as a result were good candidates for confinement.

A cost-benefit study by Edwin Zedlewski (1987) supported this view. Specifically, he calcu- lated that the average offender commits 187 crimes per year at a social cost of $430,000. He then estimated that if we locked up 1,000 more offenders, it would cost the criminal justice system $25 million but prevent 187,000 crimes, which would equate to a social cost savings of $430 million, per his original estimate. Hence, he resolved that it was far more costly to keep criminals in the community than to prosecute and confine them through the criminal justice system.

The get-tough movement also spurred a number of policies such as boot camps, Scared Straight programs, supermax facilities for juveniles, and shock incarceration. One of the changes with the greatest impact was a shift to the frequent use of waivers to adult court. States began to

iStockphoto/Thinkstock To truly “get tough on crime,” incarceration became the preferred remedy for criminal activity because many researchers argued rehabilitation did not work. By the 1990s, Princeton researcher John DiIulio went so far as to declare that society must prepare for and against the coming “super-predator”: the teenage male involved in gangs and public violence.

Section 2.8The Current System: Changing Times?

enact legislation to make it easier to transfer juvenile cases to the adult criminal court system, resulting in a dramatic increase in transferred cases.

This shift to punitive policies had its critics. For example, critics of the cost-benefit analysis suggested that the estimates of social cost savings were too high and did not consider the possibility of diminishing returns in that there is no guarantee that confinement would stop a criminal career in its tracks (Zimring & Hawkins, 1988). Others worried that juvenile institu- tions could act as crime schools and that for certain delinquents (particularly drug traffick- ers) a replacement effect would be likely, by which a new delinquent would be immediately replaced by another (Petersilia, 1992).

Still others argued against selective incapacitation on the basis of fairness and ethics. For example, it would be unethical to confine some people for longer periods of time for some- thing they might do in the future. Further, they argued that confined individuals are not given the opportunity to show they would have done no harm. Von Hirsch (1976) argued that the worst outcome would be to incapacitate people who are not a threat and thereby deprive them of their freedom. Regardless, given the public and political will that existed at the time, the get-tough movement churned on.

In recent years, however, these policies appear to be softening. It is difficult to say whether the system will revisit the bygone years of rehabilitation as a guiding philosophy, but mount- ing evidence suggests that the pendulum may be swinging back in that direction.

2.8 The Current System: Changing Times? The current system has experienced several important shifts in how we treat and respond to juvenile delinquency (see Table 2.1). Today cracks appear to be emerging in the get-tough or penal harm movement. As noted by Listwan, Jonson, Cullen, and Latessa (2008), “Despite the wildly punitive shift that has occurred in American corrections, ideological and policy space exists to bring about alternative initiatives that emphasize social welfare and challenge the effectiveness of inflicting pain on offenders” (p. 425). In other words, the justice system (for both juveniles and adults) appears to be softening its approach to crime and punishment once again. The shift appears to be partly due to the costs of confinement and the ineffectiveness of punitive policies.

Evidence suggests that incarceration can lead to a host of problems, including increases in recidivism and psychological distress, and that it continues to destabilize already disadvan- taged communities and family units (Clear, 2007; Listwan, Sullivan, Agnew, Cullen, & Colvin, 2013). Studies suggest that policies and programs geared toward rehabilitation are not soft on crime but are smarter ways to reduce delinquency. The criminal justice field has learned a great deal throughout the years about designing and implementing effective correctional programs. If implemented appropriately, effective interventions potentially have a payoff far greater than what we have seen from the correctional system in the past.

Section 2.8The Current System: Changing Times?

Table 2.1: The history of juvenile justice

Period Colonial period

Refuge period

Juvenile court period

Juvenile rights period

Crime control period

Changing times?

Basic philosophy

Corporal punishment; role of religion

Separate confinement; discipline; reform of individual

Formalized process for juveniles; rehabilitation remained as a goal

Concern over due process rights, net widening, and the reach of the system

Movement away from rehabilitation to a punitive philosophy

Potential movement toward rehabilitation

Major policies

Age of Enlighten- ment; Peni- tentiary Act

Child-saving movement; House of Refuge

Progressive Era; Juvenile Court Act

Landmark court cases; Uniform Juvenile Court Act; OJJDP creation; Juvenile Justice Delinquency Prevention Act

Mandatory minimum sentences; determinate sentencing; boot camps

Abandon- ment of many punitive policies; death penalty ruling; research supporting treatment services

To illustrate, several get-tough policies directed toward juveniles have become less popular. Boot camps (see Chapter 10) were popular for a number of years on the basis of deter- rence theory and retribution. However, documented abuses and research by MacKenzie and colleagues (MacKenzie, Brame, McDowall, & Souryal, 1995; MacKenzie, Wilson, & Kider, 2001) questioning the effectiveness of boot camps led most states to dismantle these pro- grams. Similarly, studies show that Scared Straight programs, D.A.R.E. programs, and other similarly situated policies have little effect on recidivism (Lipsey, 1992). At the same time, however, support has increased for treatment interventions such as multisystemic therapy, Functional Family Therapy, and a variety of prevention efforts (Andrews et al., 1990; Cullen & Gendreau, 2000).

In addition, policymakers and researchers have been reexamining the effectiveness and appropriateness of treating juveniles as adults. Studies find that transferring juveniles to adult courts is not effective in reducing recidivism through a potential deterrent effect. In fact, juveniles transferred to adult court were more likely to recidivate, were less likely to have access to treatment services, and were at greater risk for victimization (Applegate, King Davis, & Cullen, 2009). Regarding the ultimate punishment, the Supreme Court reversed its earlier decision on the use of the death penalty for juveniles. The Court recognized that juve- niles lacked the full maturity of adults and are more amenable to treatment than adults. It also argued that there appeared to be a national consensus on the issue after a number of states moved to abolish the death penalty for juveniles even after the Court ruled in the 1980s that the death penalty was not unconstitutional for juveniles. Time will tell if the pendulum con- tinues to swing toward rehabilitation.

Summary of Learning Objectives

Summary of Learning Objectives Summarize how early philosophies and religion shaped the treatment of children both before and during the Colonial Period.

• The juvenile justice system has experienced many philosophical cycles over the years.

• The earliest set of laws governing children were not concerned with the care and well-being of children.

• Religion has continually played an important role in the juvenile justice system as a justification for both punishment and rehabilitation.

Describe the shift in juvenile justice during the Colonial Period.

• The Age of Enlightenment led to a fairly significant shift in the philosophy of how criminals should be punished.

• A movement away from retribution and deterrence led to significant prison reforms. These reforms were intended to provide safe environments where juveniles could be rehabilitated.

Identify the key features of the Refuge Period.

• The child savers were reformers who wanted to provide children better opportuni- ties and guide them into a better life.

• The New York House of Refuge was the first juvenile reformatory in the United States.

Explain how the juvenile and adult courts became distinct during the Juvenile Court Period.

• The Progressive Era reforms focused on individualized treatment of the person by examining both biological and psychological issues.

• In 1899, the first juvenile court was established in Illinois through the Juvenile Court Act.

• The Juvenile Court Act provided several guidelines for how juvenile courts should work, including the notion that the juvenile court should be informal in nature under the parens patria doctrine.

Analyze the evolution of juvenile rights during the Juvenile Rights Period.

• In the 1960s, the system began to take steps to decriminalize status offenses. • The Juvenile Rights Period ushered in a number of key court cases all focusing on the

due process rights of juveniles. • The Juvenile Justice and Delinquency Prevention Act of 1974 called for the deinstitu-

tionalization of status offenders. • The Office of Juvenile Justice and Delinquency Prevention (OJJDP) was created

in 1974 and is designed as a clearinghouse of information related to juvenile justice issues.

Summary of Learning Objectives

Describe the rationale and policies of the “get-tough” movement during the Crime Control Period.

• Relying on increasingly punitive strategies as a way to deter youth from commit- ting crime is the central feature of the Crime Control Period. Notable policies dur- ing this time included mandatory minimum sentences; transfers to adult court; and increased use of prison, boot camps, and chain gangs.

• The get-tough movement led to significant increases in the juvenile justice population.

Evaluate the current changes that are taking place in the juvenile justice system.

• There appears to be a softening of the punitive policies of the Crime Control Period, although it remains to be seen whether the juvenile justice system returns to its focus on rehabilitation.

• Researchers and policymakers now support using evidence-based strategies to reduce delinquency.

Critical Thinking Questions 1. What is meant by the term parens patria? Does it still exist in today’s juvenile justice

system? 2. Do you think we should have a separate juvenile justice system or simply handle the

most serious juvenile criminals through the adult system and divert the rest? Justify your answer.

3. Are you in favor of a return to a philosophy of rehabilitation for the juvenile justice system? Why or why not?

4. Should the incarceration of juveniles be limited to only a certain age group (e.g., 16 years or older)? Should juveniles who are very young (e.g., 12 years old) be incarcer- ated with those who are older (e.g., 17 years old)? Why or why not?

Key Terms Age of Enlightenment A philosophi- cal revolution in England and France in the 1700s.

child savers American reformers who were concerned that youth were still housed with adults and that the focus of incarcera- tion remained highly punitive.

Elmira Reformatory Established in the 1870s, this reformatory was designed for first-time felony offenders between the ages of 16 and 30.

Hammurabic Code The set of laws devel- oped by King Hammurabi of Babylon in 1750 BCE. The first comprehensive set of laws to be developed.

Juvenile Justice and Delinquency Preven- tion Act The 1974 law that called for the deinstitutionalization of status offenders and nonoffenders and for a “sight and sound separation” provision by which juveniles cannot be detained in an institution where they can see or hear adult offenders.

net widening Growth of the juvenile jus- tice system’s reach through criminalizing of minor offenses.

Summary of Learning Objectives

New York House of Refuge The first juvenile reformatory in the United States, opened in New York in 1825.

Office of Juvenile Justice and Delin- quency Prevention (OJJDP) The federal office created in 1974 that functions as a clearinghouse for information related to juvenile justice.

patria potestas An early notion of law that viewed children as property of their parents.

Penitentiary Act of 1779 An English law that called for a secure, sanitary prison system that was subject to inspection and intended to reform and not just punish.

Progressive Era Reform movement of the early 1900s.

Stubborn Child Law Enacted in colonial Massachusetts in 1646; stated that if a child of 16 years of age was rebellious and stub- born, the parents could bring the child to court where the child could receive a death sentence.

transportation An old form of confine- ment in which criminals were moved to other countries by ship.

Uniform Juvenile Court Act The 1968 law that detailed standards the juvenile justice system should follow, including the police, courts, and corrections, and that argued for the preservation of rehabilitation as the guiding philosophy of the juvenile court.

workhouse concept The idea that people in prisons should engage in hard work and discipline.