Introduction To Juvenile Justice: 1200 words and three scholarly references

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Chapter ObjeCtives After studying this chapter, you should be able to

• Describe how the middle and upper classes in the late 1800s viewed the poor and the working class

• Describe how the elite’s view of the poor and the working class influenced the types of social control mechanisms that were developed

• Describe who the “child savers” were and why they were interested in poor, wayward youths

• explain how the inability or unwillingness of criminal courts to deal with young offenders encouraged the development of the juvenile courts

• Describe the ways in which the social context of the late 1800s and early 1900s contributed to the development of the juvenile courts

• Describe the legal doctrine of parens patriae, and indicate how it was used as a justification for state intervention into family life

• explain why concern about the lack of due process in juvenile courts grew during the middle of the 1900s

• Describe the significance of Kent v. United States, In re Gault, In re Winship, and McKeiver v. Pennsylvania and how these cases influenced juvenile justice practice

Chapter Outline introduction

the social Context of the juvenile Court

the legal Context of the juvenile Court

the Operation of the early juvenile Courts

the legal reform Years

legal issues

Chapter summary

The Development of the Juvenile Court

chapter

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■ introduction

This chapter examines the development of the juvenile court in the United States. It describes the social context influencing the creation of the first juvenile court, established in Chicago in 1899, and the rapid spread of juvenile courts to other jurisdictions. It explores the legal developments that formed the underlying basis of juvenile court practice. It also looks at early juvenile court operation and important landmark cases that have affected the operation and practices of contemporary juvenile courts and other juvenile justice agencies. The chapter closes with an examination of the extent to which important legal cases actually influence the practice of juvenile justice.

■ the social Context of the juvenile Court

The period from 1880 to 1920, referred to as the progressive era by historians, was a time of major change in the United States. The pace of industrialization, urbanization, and immigration quickened during this period, and the population became more diverse. The stream of Irish and German immigrants that had begun during the early 1800s trailed off at the end of the century, but they were replaced by Italians, Russians, Jews, Greeks, and other immigrants from

eastern and southern Europe—people who came from cul- tural backgrounds that were alien to native-born Americans.1

The dream of a better life drew many people to American cities during the Progressive Era. This dream, however, fre- quently remained unrealized. Wealth was becoming increas- ingly concentrated in the hands of business elites who sought to dominate economic life, workers were forced to work long hours in unsafe work settings for low wages and no ben- efits, and housing was often inadequate. Periodic economic depressions ruined many people financially and made life particularly difficult for the poor. Not surprisingly, urban areas faced many social problems, including poverty, labor unrest, alcoholism, disease, racial and ethnic prejudice and discrimination, and crime.

progressive era A period in

American history, lasting roughly from 1890 to 1924, during

which a variety of economic, social, and political reforms and

reform movements occurred, including

women’s suffrage; trust busting; Pro- hibition; reduction in working hours;

elimination of child labor; adoption of

social welfare ben- efits; and the popular

voting measures of initiative, recall,

and referendum. The reforms were

primarily concerned with responding to popular unrest and

problems uncovered in the operation of

economic, social, and political institutions.

Key Concepts

review Questions

additional readings

Cases Cited

notes

Photo: Courtesy of Underwood & Underwood., Library of Congress Prints and Photographs Division.

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FYi urban GrOwth was OnlY One impOrtant ChanGe DurinG the prOGressive era

the city of Chicago provides a good example of the changes experienced during the Progressive era. Between 1890 and 1910, the population of Chicago doubled, growing in those two decades from 1 million to 2 million people. Between 1880 and 1890, the number of factories nearly tripled. Furthermore, by 1889, nearly 70% of the inhabitants of the city were immigrants.2

FYi ameriCan histOrY is Full OF COnFliCtinG interests

the United States has seen several conflicts between opposing interests, often the wealthy and the poor. One of the earliest of these was Shays’s rebellion, which began in western Massachusetts during the summer of 1786. the uprising represented an attempt by debt-ridden farmers to seize courthouses in order to forestall foreclosure proceedings against them. In 1839, an anti-rent movement spread throughout New York’s hudson Valley; thousands of renters attempted to make their voices heard and to resist the efforts of wealthy landlords to collect rents and taxes from poor farmers. all through the later 1800s, workers engaged in strikes and other efforts in order to win better wages and improve working conditions. the conflict between workers and employ- ers sometimes turned violent. For example, the great railroad strikes of 1877, which involved approximately 100,000 strikers, resulted in 1,000 arrests and 100 deaths.3

In response to the growing problems in many communities, members of the middle and upper classes attempted to implement reforms to alleviate the worst conditions faced by the poorest citizens. Of course, poverty, labor unrest, alcoholism, and racial and ethnic prejudice were hardly new. However, as the size and diversity of the population increased, these problems had grown. By the end of the 1800s, workers’ movements had become more national in scope and were clearly seen as more threatening to political and economic elites. As a result, these elites sought to devise better mechanisms of control in order to protect their interests.4

FYi the prOGressive era was a time OF ChanGe

the Progressive era was characterized by a political revolt against the social and economic evils of the Indus- trial revolution and a belief that government intervention, even on a national scale, was necessary to remedy these evils. Politically, it began with a series of urban and state reform movements directed against corrupt and boss-ridden local governments.

the Progressive era was also characterized by the belief that american ingenuity and spirit could solve social problems and make life better for people. tremendous technological advances were taking place, includ- ing the development of the automobile, the airplane, moving pictures, the phonograph, and the electric light bulb, to name just a few. equally important, many americans believed that advances also could be made in social, political, and economic life.

The American Constitution: Its Origin and Development by a. h. Kelly and W. a. harbison describes the Progressives as follows: “Like the Jeffersonians of a century before, the Progressives had an abiding faith in the intelligence and good will of the american people. Fundamentally, their remedy for the failures of democracy was more democracy. Let the will of the people really reach into the Congress, the courts, the state legislatures, and america could then solve its problems.”5

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Two problems that caused concern in the develop- ing urban areas were youth waywardness and crime. Thousands of indigent children roamed the streets in the larger cities,6 and many of these children engaged in immoral or illegal behavior that threatened the tran- quility of city life. Of course, criminal laws could be used to prosecute youths who committed crimes, but if the offenses were minor, the courts were often reluc- tant to do more than give the culprits a stern lecture. Furthermore, the laws were ineffective against those who had not committed crimes. As a result, reform-

ers sought to develop better ways of controlling youths—both those who committed crimes while they were young and those who were believed to be destined for adult criminal careers.

Those who led the reform effort, known as child savers, were primarily well-educated Protestant, middle-class women of Anglo-Saxon descent, but some were the daughters or wives of the most influential men in their community.7 They also tended to be conservative in their thinking. For example, they believed in traditional roles for women, and like other affluent people, they took for granted their natural superiority over the poor. From the child savers’ perspective, homemaking and child care were women’s primary responsibilities. However, because these traditional duties were performed in their own homes by servants, they had few outlets for their energies. Child saving provided a mechanism for these women to perform an important public service—the control and care of less fortunate children.8

FYi sOCial Darwinism inFluenCeD manY peOple’s thinKinG at this time

Social Darwinism was based on the belief that people’s position in life was a product of natural selection. thus, those who were wealthy believed that their wealth was a product of their natural superiority over those who were poor.

The child savers were informed by the latest thinking on adolescence, which saw adoles- cents as more like children than adults. Adolescence was seen as a problem period in the child’s development,9 a time when youths were subject to a variety of negative influences. Indeed, youths who engaged in crime were felt to suffer from poor parenting and weak morals and to be unusually susceptible to the temptations of the streets.10

Initially, the child savers sought to improve jail and reformatory conditions.11 However, their attention soon turned toward the development of more effective means of controlling the growing population of problem youths. Indeed, the primary focus of the child-saving movement was on extending government control over children through stricter supervision and improved legal mechanisms designed to regulate their behavior.12 In short, the child sav- ers felt that intrusion into the lives of children was necessary in order to prevent them from leading immoral and criminal lives—and, equally important, to protect the state and the interests of the wealthy.

Unlike earlier reformers, the child savers thought that the interventions needed to control and uplift children should be performed by government agencies, such as the police and courts, with the assistance of local charitable organizations. According to Julia Lathrop, an influential child saver in Chicago who later became head of the Federal Children’s Bureau:

There are at the present moment in the State of Illinois, especially in the city of Chicago, thou- sands of children in need of active intervention for their preservation from physical, mental and moral destruction. Such intervention is demanded, not only by sympathetic consideration for their

child savers A group of

reformers, mostly well- educated,

middle-class Protestant women

of Anglo-Saxon descent, who

had the time and resources to fight for improved conditions

for youths in jails and reformatories

and who eventually played an important

role in the creation of the juvenile

courts. On the posi- tive side, their work led to wider accep-

tance of adolescence as an important

developmental stage of life, and they cor-

rectly believed that the adult criminal justice system was

harmful to children or at best ineffec-

tive. On the negative side, their conser- vative ideas on the

family and their “noblesse oblige”

attitude toward the poor resulted in

reforms that focused more on the social control of children and the protection

of the interests of the wealthy than on attacking the

underlying causes of problem youth

behaviors.

Photo: Courtesy of hine, Lewis Wickes, 1874-1940, Library of Congress Prints and Photographs Division.

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well-being, but also in the name of the commonwealth, for the preservation of the State. If the child is the material out of which men and women are made, the neglected child is the material out of which paupers and criminals are made.13

■ the legal Context of the juvenile Court

Although the social conditions that existed in urban areas led reformers to advocate for changes in how communities responded to youth crime and waywardness, the reformers also recognized that existing legal mechanisms for controlling and protecting children were inadequate. One immediate concern of the child savers was the placement of children in jail. For example, a study of the county jail system in Illinois in 1869 discovered 98 children younger than 16 years in 40 different jails. In Michigan, 377 boys and 100 girls younger than 18 years were placed in county jails in 1873; 182 boys and 29 girls were placed in jails in Ohio in 1871; and more than 2,000 youths, 231 of whom were younger than 15 years, were placed in jails in Massachusetts in 1870. The jailing of children was a common practice.14 However, as the Board of State Charities in Illinois noted, the county jails in the state contained cells that were “filthy and full of vermin,” and were “moral plague spots” where children were turned into “great criminals.”15

The child savers, who were concerned about the conditions children were exposed to in adult jails and lockups, condemned the fact that adult courts failed to mete out appropriate punishments for many of the transgressions of the young. Unless their offenses were severe, criminal court judges often treated youths leniently. From the child savers’ perspective, children either were treated too severely, by being placed in adult facilities where they were corrupted by older and more hardened offenders, or were let go without receiving any assistance.16 Thus, according to the child savers, children were neither controlled nor helped.

By the late 1800s, legal mechanisms for treating children separately from adults had been in existence for some time. For example, laws establishing the minimum age at which a child could be considered legally responsible for criminal behavior as well as age limits for place- ment in adult penitentiaries were enacted during the first half of the century.17 Moreover, the first special institution dealing with youths, the House of Refuge, was established in New York City in 1825, and these institutions spread to other jurisdictions.

The legal justification for state intervention in the lives of children was based on the doc- trine of parens patriae (the state as parent), which was given legal standing in an important case, Ex parte Crouse, in 1838. Mary Ann Crouse was committed to the Philadelphia House of Refuge by her mother, but against her father’s wishes. The father questioned Mary Ann’s placement, arguing that she was being punished without having committed a criminal offense. The Pennsylvania Supreme Court ruled that Mary Ann’s placement was legal because the pur- pose of the house of refuge was to reform youths, not punish them; that formal due process protections afforded to adults in criminal trials were not necessary because Mary Ann was not being punished; and that when parents were unwilling or unable to protect their children, the state had a legal obligation to do so.18

The right of the state to intervene in the lives of children did not go unchallenged, however. In another important case, People v. Turner (1870), the Illinois Supreme Court ruled that Daniel O’Connell, who was committed to the Chicago House of Refuge against his parents’ wishes, was being punished, not helped, by his placement. In some respects, this case was similar to Crouse. Daniel was institutionalized even though he had committed no criminal offense, and he was perceived to be in danger of becoming a pauper or criminal. In other respects, however, the two cases were decidedly different. Unlike the Crouse case, both parents had objected to Daniel’s placement, and, even more important, the court ruled that his placement was harm- ful, not helpful. Furthermore, the court decided that because placement in the house of refuge was actually a punishment, due process protections were necessary.19

parens patriae The obligation of the government to take responsibil- ity for the welfare of children. The doctrine of parens patriae recognizes the moral obligation of the government to take care of children when there is no family available or if the family is not suitable.

due process A course established for legal proceedings intended to ensure the protection of the private rights of the litigants. The essential elements of due process are

1. proper notice as to the nature of the legal proceedings,

2. a meaning- ful hearing in which the indi- vidual has an opportunity to be heard and/or defend him- or herself, and

3. the objectivity of the tribunal before which the proceedings take place.

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People v. Turner was an important case because it was seen by reformers as an obstacle to their efforts to help and control youths. The Illinois Supreme Court’s ruling in People v. Turner that required due process protections prior to youths’ placement, along with the increasing con- cern over the unwillingness of the criminal courts to sentence youths, led reformers in Chicago to consider other mechanisms by which their aims might be achieved. What they finally did was create the first juvenile court, which was established in Cook County (Chicago) in 1899.20

The juvenile court allowed reformers to achieve their goals of assisting and controlling children’s behavior without undue interference from the adult courts and without undue concern for the due process protections afforded adults. This was accomplished by setting up the court as a civil or chancery court intended to serve the “best interests” of children (as opposed to a criminal court, which focuses on the punishment of offenders). Because the new court was not a criminal court and its goal was not to punish but to help children, the need for formal due process protections was obviated.21

■ the Operation of the early juvenile Courts

The Juvenile Court Act of 1899 gave the new juvenile court in Illinois broad jurisdictional pow- ers over people younger than 16 years who were delinquent, dependent children, or neglected children.22 In addition, it required that the court be overseen by a special judge, that hearings be held in a separate courtroom, and that separate records be kept of juvenile hearings.23 It also made probation a major component of the juvenile court’s response to offenders and emphasized the use of informal procedures at each stage of the juvenile court process.24

FYi inFOrmalitY has been a hallmarK OF the juvenile COurt

Informality, a lack of concern with strict due process, has characterized the operation of many juvenile courts since their inception.

In practice, the informality of the juvenile court meant that complaints against children could be made by almost anyone in the community. It meant that juvenile court hearings, which were initially open hearings like those in adult court, would become closed hearings, often held in offices as opposed to traditional courtrooms. In these closed hearings, the only people present were the judge, the parents, the child, and the probation officer. The informality also meant that few, if any, records were kept of hearings, that proof of guilt was not necessary for the court to intervene in children’s lives, and that little or no concern for due process protections existed. Finally,

it meant that judges exercised wide discretion regarding the actions they took, which could include anything from a stern warning to placement of a child in an institution.25

FYi

the first legislatively created juvenile court case was heard on July 3, 1899, before a packed courtroom on the third floor of the County Building in downtown Chicago before the honorable richard tuthill. the case involved henry Campbell, an 11-year-old who was arrested at the request of his mother for larceny. reporters covering the case noted that Mrs. Campbell told the court that her son was not a bad boy but had been negatively

chancery court English court

that was primar- ily concerned with

property rights. Chancery courts,

first established dur- ing the Middle Ages, were partially based

on the idea that children, particu-

larly children who owned or were in a position to inherit

property, should fall under the protective

control of the king. It was in these courts

that the concept of parens patriae was

developed. Over time, the chancery

courts became more involved in

the general welfare of families and

children. Because of its role in protect- ing the interests of children, it served as a model for the

juvenile court.

dependent children Children who are

dependent on others for financial support or who do not have

the support of a par- ent or guardian.

neglected children Children who are not given appro- priate care by the

parent(s) or a guardian.

Photo: Courtesy of hine, Lewis Wickes, 1874-1940, Library of Congress Prints and Photographs Division.

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influenced by others. She went on to say that she and her husband did not want him to be placed in an insti- tution and indicated to the judge that henry’s grandmother, who lived in rome, New York, was willing to take him. after carefully questioning the parents, Judge tuthill agreed that placing henry with the grandmother would be the best solution. thus, the first case in the juvenile court reflected the goal of the new court, to act in the child’s best interest.26

FYi pOlitiCs have alwaYs plaYeD a rOle in the juvenile COurt

the first hearing held by the Cook County Juvenile Court was a public event because the institutional lobby in Illinois that represented child-care institutions in that state had successfully opposed initial provisions of the legislation that called for closed hearings. In addition, the institutional lobby was also successful in ensuring that the initial legislation that was passed in Illinois gave jurisdiction over cases to the institutions after a juvenile was placed. as a result of the efforts of the institutional lobby, the placement of children in institutional settings in Illinois increased after the juvenile court was established.27 this is a good example of the role of politics in juvenile justice.

The idea of using juvenile courts to deal with youth crime spread rapidly after the pas- sage of the Illinois legislation. Within 10 years, 10 states had established special courts for children, and by 1925, all but two states had juvenile courts.28 These courts closely followed the model developed in Chicago: they were procedurally informal and intended to serve the best interests of children.

The juvenile courts were successfully implemented, in large measure, because they served a variety of interests. They served the interests of reformers, who sought to help children on humanitarian grounds, and the interests of those who were concerned primarily with the con- trol of lower-class, immigrant children, whose behaviors threatened urban tranquility.29 They served the interests of the criminal courts because they removed children from criminal court jurisdiction, freeing up time for the trying of adult offenders. Finally, they served the interests of the economically and politically powerful, because they did not require the alteration of existing political and economic arrangements.30 Although some undoubtedly saw the new juvenile courts as instruments of change, many others saw them as instruments of containment.

Despite the growing popularity of the juvenile courts, they did not go unchallenged. In another important court case, Commonwealth v. Fisher (1905), the juvenile court’s mission, its right to intervene in family life, and the lack of due process protections afforded children were examined by the Pennsylvania Supreme Court. In this case, Frank Fisher, a 14-year-old male, was indicted for larceny and committed to a house of refuge (the same house of refuge that Mary Ann Crouse had been committed to more than 60 years earlier) until his 21st birthday. Frank’s father objected to his placement and filed a suit that argued that Frank’s seven-year sentence for a minor offense was more severe than he would have received in a criminal court.31

In its ruling, the Pennsylvania Supreme Court upheld the idea of a juvenile court and in many respects repeated the arguments made by the court in the Crouse decision. The court found that the state may intervene in families when the parents are unable or unwilling to pre- vent their children from engaging in crime, and that Frank was being helped by his placement in the house of refuge. Furthermore, it ruled that due process protections were unnecessary when the state acts under its parens patriae powers.32

Fisher set the legal tone for juvenile courts from the time they began until the mid-1960s, when new legal challenges to the courts began to be mounted. These legal challenges primarily concerned expansion of juveniles’ due process protections. Critics of the juvenile courts recog- nized that despite their expressed goal of serving the best interests of children, the established institutions of juvenile justice often did the opposite. Although the courts were intended to help

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children, they did not always act as wise and benevolent parents. Indeed, their use of coercive powers to deal with a wide range of behaviors, many of which were not criminal in nature, in an informal setting without due process protections, created the potential for abuse. Moreover, although reformers had looked to the juvenile courts as a mechanism for both helping and controlling delinquent and wayward children, little attention was devoted to improving other juvenile justice institutions. Various mechanisms intended to assist the court in its mission, such as probation, relied heavily on untrained volunteers.33 Furthermore, the institutions used by the juvenile courts for the placement of children were the same institutions used before the establishment of the courts, and children continued to be subjected to inhumane treatment.34

COmparative FOCus

legislation establishing a separate juvenile justice process was enacted in Other western Countries During the early 1900s

For example, in 1908, the federal Juvenile Delinquents act (JDa), which stressed a treatment-oriented philosophy, was passed in Canada,35 and the Children act was passed in Britain, which established juvenile courts in england, Wales, Scotland, and Ireland.36 In Germany, the Juvenile Welfare act (JWa) of 1922 (with amendments in 1923) was passed to establish legal procedures for dealing with the rehabilitation and institutionalization of youths.37

■ the legal reform Years

The 1960s and 1970s were a time when American institutions, including juvenile justice institu- tions, came under intense scrutiny. During this period, the U.S. Supreme Court heard a number of cases that altered the operation of the juvenile courts. The most important of these was In re Gault (1967), which expanded the number of due process protections afforded juveniles. This section discusses this case and several others, including the first of these important cases, Kent v. United States (1966).

Morris Kent was accused of committing break-ins and robberies in the District of Colum- bia. One robbery victim was raped, but the principal evidence against Kent was a latent fin- gerprint left at the scene of the robbery and rape. Kent was on probation at the time of these crimes, and after his arrest, he was interrogated over a seven-hour period and confessed to several house break-ins. Without a hearing or any formal notice, Kent’s case was transferred to the criminal court. His attorney tried to get the case dismissed from the adult court and moved for a psychiatric evaluation and for receipt of all social reports in the juvenile court’s possession. The motions by Kent’s attorney were denied, however. At his trial in criminal court, Kent was convicted by a jury for robbery and housebreaking, and he was sentenced to 30 to 90 years in prison.

The matter was appealed on the jurisdictional issue of the waiver from juvenile court to adult court. It was contended that the waiver was defective on the following grounds:

• No waiver hearing was held. • No indication was given as to why the waiver was ordered. • Counsel was denied access to the social file and social reports that were reportedly used

by the judge to determine the waiver.

In this case, the Supreme Court ruled that for Kent’s waiver to be valid, certain due process requirements were necessary. Specifically, the Court held that Kent was entitled to representa- tion by an attorney; to a meaningful hearing, even if informal; to access to any social reports,

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records, reports of probation, and so on, that would be considered by the Court in deciding the waiver; and to be apprised of the reasons for the waiver decision.38

Kent was an important case for several reasons. It resulted in the first major ruling by the U.S. Supreme Court that scrutinized the operation of the juvenile courts. After more than 60 years of informal parens patriae procedures, the appropriateness of these procedures was being questioned, even if only narrowly, in the limited area of waivers to adult court. Kent also made explicit the need for due process protections for juveniles who were being transferred to adult courts for trial. The Court noted that even though a hearing to consider transfer to adult court is far less formal than a trial, juveniles are still entitled to some due process protections.

In its decision, the Court made numerous references to the need for due process protec- tions, stating that in a juvenile court a child may receive “the worst of both worlds: that he gets neither the protections afforded to adults nor the solicitous care and regenerative treat- ment postulated for children.”39 After the Court began to look at juvenile court processes and procedures, subsequent cases like Gault, McKeiver, and Winship became inevitable.

Having given notice that it would review the operation of the juvenile courts, within a year of the Kent decision the Supreme Court heard another landmark case. This case, In re Gault (1967), went far beyond Kent in its examination of juvenile court practice and extended a variety of due process protections to juveniles. The facts of the case clearly demonstrate the potential for abuse found in the informal procedures of the traditional juvenile court, and consequently this case is discussed in detail.

Gerald Gault was 15 years old when he and a friend were taken into custody by the Gila County (Arizona) Sheriff ’s Department for allegedly making an obscene phone call to a neighbor, Ms. Cook. At the time of his arrest, Gerald was on six months’ probation—the result of being with another friend, who had stolen a wallet from a purse. Gerald was taken into custody on the verbal complaint of Ms. Cook and was taken to the local detention unit. His mother was not notified of this by the police, but she learned about it later that day when she returned home and, not finding Gerald present, sent a sibling to search for him.

Upon learning that Gerald was in custody, Ms. Gault went to the detention facility and was told by the superintendent that a juvenile court hearing would be held the next day. On the following day, Gerald’s mother, the police officer who had taken Gerald into custody and filed a petition alleging that Gerald was delinquent, and Gerald appeared before the juvenile court judge in chambers. Ms. Cook, the complainant, was not present. Gerald was questioned about the telephone call and was sent back to detention. No record was made of the hearing and no one was sworn to tell the truth, nor was any specific charge made, other than an alle- gation that Gerald was delinquent. At the conclusion of the hearing, the judge said he would “think about it.” Gerald was released a few days later, although no reasons were given for his detention or release.

On the day of Gerald’s release, Ms. Gault received a letter indicating that another hearing would be held regarding Gerald’s delinquency a few days later. A hearing was held, and again the complainant was not present, and no transcript or recording was made of the proceedings. (Later, what was said was disputed by the parties.) Neither Gerald nor his mother was advised of any right to remain silent, of Gerald’s right to be represented by counsel, or of any other constitutional rights. At the conclusion of the hearing, Gerald was found to be a delinquent and was committed to the state industrial school until age 21 years, unless released earlier by the Court. This meant that Gerald received a six-year sentence for an offense that, if com- mitted by an adult, could be punished by no more than two months in jail and a $50 fine.40

In Gault, the Court ruled that the special circumstances that gave rise to the informal process of juvenile courts and the broad discretion of juvenile court judges did not justify the denial of fundamental due process rights for juveniles. The majority opinion stated, “As we shall discuss, the observance of due process standards, intelligently and ruthlessly administered,

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will not compel the states to abandon or displace any of the substantive benefits of the juvenile process.” The justices went on to argue:

The constitutional and theoretical basis for this particular system is—to say the least—debatable. And in practice, as we remarked in the Kent case, supra, the results have not been entirely satisfac- tory. Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedures. . . . The absence of substantive standards had not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness. . . . Failure to observe the fundamental requirements of due process has resulted in instances. . . . of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary and indispensable foundation of individual freedom. . . . Under our Constitution, the condition of being a boy does not justify a kangaroo court.41

The Court made it clear that juveniles are to be afforded fundamental due process rights that measure up to the essentials of fair treatment. The following rights are included:

• the right to reasonable notice of the charges • the right to counsel (either retained or appointed) • the right to confrontation and cross-examination of witnesses • the right against self-incrimination

However, the Court limited the application of these rights to proceedings involving a deter- mination of delinquency that may result in commitment to an institution.

Fundamental changes were required in juvenile courts after Gault. Many of them carried high costs. For example, the right to appointed counsel has become a major budget concern for juvenile courts, especially because this right has been expanded several times in subsequent Court decisions. The right to confrontation requires the processing of subpoenas and the costs of service. Finally, due process requirements have resulted in more adversarial hearings, which take longer to complete and thus push up costs.

Although Gault was a landmark juvenile law case, it was not the last Supreme Court deci- sion that influenced juvenile court procedures. The Court further expanded protections for juveniles three years after Gault. In In re Winship (1970), it addressed the level of proof needed for a conviction of delinquency. The case involved a 12-year-old male who was found guilty of stealing $112 from a woman’s purse. As a result, he was placed in a New York training school for a minimum period of 18 months, although the juvenile court indicated that the term of the sentence could be extended to the youth’s 18th birthday. The judge who heard the case admitted that proof “beyond a reasonable doubt” was not established at trial, but held that this level of proof was not required.

A majority of the Supreme Court justices held that proof of guilt beyond a reasonable doubt was an essential element of due process in delinquency cases. The Court indicated that to allow a lesser standard would seriously harm the confidence of the community in the fairness of the adjudicative process. The Court went on to talk about the “moral force” of the criminal law and how this force would be diluted if the standard of proof was lowered. According to the Court, a lower standard would lead the community to wonder whether innocent juveniles were being convicted and incarcerated.

The Winship decision added due process protections to those established by Kent and Gault. The result was that the concept of “proof beyond a reasonable doubt,” which had long been accepted in adult criminal cases, was now applied to adjudications in which juveniles were at risk of institutional placement.

The Supreme Court’s willingness to extend due process protections to juveniles came into question the following year, however. It heard two cases jointly, one from Pennsylvania and

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one from North Carolina, that concerned whether juveniles should be entitled to jury trials at the trial or adjudicative stage of the juvenile court process. In the Pennsylvania case, McKeiver v. Pennsylvania (1971), the Court used procedures that were similar to those used in adult criminal courts (plea bargaining, motions to suppress evidence, and so on). Moreover, one possible outcome was incarceration in a prison-like facility until the juvenile’s age of major- ity. The North Carolina case was heard in a court using much less formalized procedures than those in Pennsylvania, but the argument was made that the supposed benefits of the juvenile court system—discretionary intake, diversion, flexible sentencing, and a focus on rehabilitation—would not be hindered by the use of juries.

Justice Blackmun, writing for the majority, reviewed the historical reasons for a separate and distinct juvenile court and concluded by stating:

The arguments necessarily equate the juvenile proceeding—or at least the adjudicative phase of it—with the criminal trial, whether they should be so equated is our issue. . . . If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day; but for the moment, we are disinclined to give impetus to it.42

Consequently, the Supreme Court declined to extend the constitutional right to jury trial to the juvenile system.

McKeiver is important because it made clear that the Supreme Court was unwilling to give juveniles all of the due process protections available to adults. Nevertheless, many states have extended the right to a jury trial to youths at the adjudicative phase of the juvenile justice process. The McKeiver decision was not unanimous, however. Justice Brennan, in his dissent in McKeiver, focused on the individual state procedure and whether it afforded sufficient protec- tions to the juvenile from any government overreaching and from the “biased or eccentric” judge. He thought that one crucial factor that needed to be taken into account in deciding whether to mandate a jury trial was the public “openness” of trial proceedings and the ability of the jury to act as both a finder of fact and the community’s conscience, preventing the state from accusing juveniles for political purposes.43

Although one of the objections to jury trials in juvenile proceedings was that they would cause a backlog of cases and hamper the functioning of the juvenile court, experience has not shown that such trials seriously impeded the juvenile justice process. The other issue related to efficiency is whether juries can consist of less than 12 citizens. In many states, a jury of six is allowed for delinquency adjudications.

A collateral benefit of allowing jury trials is that they may aid rehabilitation. A juvenile who believes that “the system” has treated him or her unfairly may be less cooperative and open to assistance than one who is tried by an objective jury. A perception of fair treatment may go a long way toward fostering acceptance of responsibility on the part of the juvenile, to say nothing of its promotion of feelings of self-esteem. Juveniles who believe that the system treats them fairly and accepts them as significant persons whose rights must be protected may overcome feelings that they were treated unjustly.

Another point that is sometimes made about the use of juries in the juvenile court is that, unlike in adult courts, the jurors are not peers of those on trial. In some instances, the juvenile may benefit from this fact, because the adults on the jury may remember their own youthful mistakes and indiscretions and feel sympathy. If they are parents, jurors also may realize that, under other circumstances, one of their children could be at the defense table.

In reality, there is little evidence that, in those jurisdictions where they are possible, jury trials in delinquency proceedings have proved to be docket cumbersome, inefficient, or exceed- ingly expensive. Moreover, they have the advantage of making a statement to the community and the juvenile regarding the juvenile court’s concern for fundamental fairness.

Despite the due process protections extended to juveniles through the Kent, Gault, and Winship decisions, much of the informality of the juvenile court remains intact in practice.

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Indeed, one complaint is that changes in the legal procedures that supposedly govern the juve- nile courts have not always resulted in fundamental changes in the daily operation of juvenile justice.44 Many critics contend that juveniles often are denied basic protections in the juvenile justice process and that the continued informality of the juvenile courts fails to serve either the juveniles’ best interests or the best interests of the community. In writing about the trial or adjudication stage of the juvenile justice process, Joseph Sanborn and Anthony Salerno note that juvenile court adjudications typically have features that work to the advantage of prosecutors. These include the following:

• No jury that might look critically at the fact-finding process • No public to examine the court (including the judge) • Defense attorneys and parens patriae judges who are inclined to focus not on legal

protections but on the child’s needs • Judges who are knowledgeable about a youth’s current offense and prior record • Less-demanding laws, rules, and procedures • Youths who are stigmatized when they come to the adjudication because they have

been detained • Fewer legal maneuvers available to defense attorneys • Parents who assist in their child’s adjudication • The ability of courts to amend petitions and continue hearings • The ability of judges to revise adverse verdicts reached by other hearing officers • The reality that few appeals are filed by defense attorneys45

Although juvenile courts often operate on the premise that their goal is to serve the child’s best interests, which can be advantageous to youths, when the sum of advantages and disad- vantages are totaled, many youths are likely to be severely disadvantaged at the adjudication.

FYi Gault raiseD impOrtant QuestiOns abOut juveniles’ riGhts

Gault raised several questions at the time of its release. Would procedural rules, such as the exclusionary rule, be applicable to juveniles? Do juveniles have the right to Miranda warnings before being interrogated by the police? Do juveniles have the right to jury trials? Do juveniles have the right to bail? at a hearing to determine a finding of delinquency, does a juvenile have to be found “guilty beyond a reasonable doubt”? Since Gault, many, but not all, of these questions have been answered in the affirmative, further prolonging juvenile proceedings and increasing court costs, but giving youths important protections.

exclusionary rule A procedural rule

that prohibits evidence that is

obtained by illegal means or in bad faith from being used in a

criminal trial.

Miranda warnings Specific warnings given to a suspect

prior to questioning that inform them that statements they make

to law enforcement agents can be used

against them in court.

bail The money or bond

used to secure the release of a person

charged with a crime.

mYth vs realitY juveniles DO nOt have all OF the leGal prOteCtiOns available tO aDults

Myth—today, juveniles have all of the due process protections afforded adults in criminal courts. reality—In some states, juveniles still lack some of the due process rights, such as right to a jury trial and a right to bail, given to adults.

FYi juvenile vs. Criminal COurts

Looked at broadly, Kent, Gault, McKeiver, and Winship concern the degree to which adult criminal practice should be extended to the juvenile courts. Kent, Gault, and Winship made clear that certain due process protections that have long been part of adult court practice also should be given to youths being tried in

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juvenile courts. McKeiver, however, indicated that there were limits to how far the Supreme Court was willing to go in this area. It also showed that the Court was unwilling to completely dismantle the juvenile justice apparatus and that it wished to maintain some of the traditional informality of juvenile courts.46 these cases left unresolved, however, whether many other adult court practices should apply to the juvenile courts, such as a defendant’s right to bail, pretrial discovery, and bill of particulars. pretrial discovery

Efforts of a party to a lawsuit to obtain information prior to trial. The theory behind discovery is that all parties should go to trial with as much infor- mation as possible.

bill of particulars In a lawsuit, a written itemiza- tion of claims or charges provided by the plaintiff at the defendant’s request; the document can serve as the factual basis of the allega- tions against the defendant.

FYi sOme states allOw jurY trials FOr juveniles

Many states have required more due process protections for juveniles than mandated by the Supreme Court. For example, many state laws specify that juveniles have a right to a jury trial (adjudication). In fact, at least one state, texas, requires that all adjudications be heard by a jury. Nevertheless, jury trials are rare in states that have this right, including texas. this is because the right is not often exercised (or, as in the case of texas, it can be and often is waived). In practice, jury trials are frequently discouraged because they are felt to be time consuming and costly, or because they impinge on the power of the juvenile court judge.

It is one thing to be afforded various rights through Supreme Court or state court rulings and state statutes. It is another thing to ensure that those involved in the juvenile justice process know all of their rights and that they feel comfortable exercising those rights. However, several studies raise serious doubts about youths’ access to counsel in delinquency proceedings and the quality of representation that occurs. A study by the American Bar Association Juvenile Justice Center, the Youth Law Center, and the Juvenile Law Center raised serious concerns about the quality of legal representation given youths in many juvenile courts.47 This research found that, in many instances, juveniles are not represented by attorneys when they appear in juve- nile court; attorneys who represent youths often have high caseloads and, in some instances, lack the proper training and experience in juvenile court to provide effective representation; and youths and their parents or guardians often fail to have a clear understanding of the legal process. As a result, youths are frequently in a vulnerable position, particularly in the early stages of the juvenile justice process, and this can lead to more severe dispositions than are warranted. These findings mirror those of other studies that have examined attorney repre- sentation in juvenile court proceedings.48 For example, a study that examined statewide data in six states (California, Minnesota, Nebraska, New York, North Dakota, and Pennsylvania) found that in three of those states (Minnesota, Nebraska, and North Dakota), the defendant was represented by counsel in approximately half of the cases in which a petition was filed. In addition, this study found that youths who received assistance from counsel were more likely to receive a more severe disposition, even when the seriousness of the charges and the youths’ delinquent history were taken into account.49 Such findings indicate that not only is represen- tation absent in many instances, but the quality of the representation provided to juveniles is often inadequate. Particularly troublesome is research that indicates that in some jurisdic- tions, non-white youth who are represented by private attorneys are more likely than similar white youths to be placed in secure confinement.50 Why this occurs is not clear. What is clear, however, is that attorney representation for youths in juvenile courts is frequently inadequate.

The continued informality of the juvenile court may also explain why very few youths contest the charges against them.51 Moreover, many others who are not petitioned and a siz- able number who go to adjudications but are not found guilty are still placed on some form of probation. For example, in 2009, almost 26% of youths who were handled informally by juvenile courts were placed on some form of probation and almost 25% of youths who were not adjudicated were placed on probation.52

Today, juveniles have been granted many, but not all, of the due process protections given to adults in criminal trials. However, the extent to which court-mandated changes in juvenile

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justice procedures have actually influenced the traditional informality of the juvenile courts is open to question. Juvenile court procedures in many jurisdictions are still characterized by an informality that would be considered unacceptable for adults brought before a criminal court.53 Moreover, this informality works to youths’ disadvantage in many instances. Is the informality necessary for the courts to carry out their mandate to serve the best interests of children and protect the community, as supporters of the traditional court procedures argue? Or does the courts’ failure to adhere to stricter due process standards lead to abuses and harm many children, as critics assert? These issues continue to be the focus of an important policy debate within the field of juvenile justice.

CriTiCal Thinking QuesTion

What are the potential advantages and disadvantages of an informal juvenile court?

■ legal issues

Kent, Gault, and Winship extended due process protections to juveniles when juveniles are at risk of commitment. These cases also raised the issue of the rights of juveniles who are involuntarily committed by their parents to mental health facilities, drug treatment centers, and other types of treatment programs. Should children have due process rights in these circumstances? Also, what about instances when the state or the federal government seeks treatment or commitment?

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Chapter summarY

The juvenile courts were developed by Progressive Era reformers (the child savers) in the late 1800s as a new means of controlling wayward and problem youths. They were characterized by a focus on rehabilitation, procedural informality, an individualized approach to cases, and the separation of juveniles from adult offenders.54 The presumption of the child savers was that children who violated the law could be, and should be, controlled and induced to abandon their youthful waywardness. Although the child savers were concerned about the increasing number of problem children who posed a threat to community life, they also viewed “delin- quents” as children who had lost their way and who needed control, guidance, and nurturing. They believed that children were different from adults and should feel “protected” by the state, and they believed that procedural formalities, such as those found in adult criminal courts, would only serve to intimidate children. They had in mind an image of a judge with his arm around a child, not a judge behind a bench with a gavel in his hand looking down on a child from on high. Their hope was that the juvenile court would form an understanding of each child’s social and family history and use it to develop an appropriate “treatment.”

Yet there was also another side to child saving. Although many child savers were con- cerned about the well-being of children and sought to create institutions capable of serving their best interests, others were threatened by the many poor and immigrant children who lived in the rapidly growing urban areas and represented a threat to traditional institutions. From the point of view of the latter reformers, the main goal was simply to prevent delinquent and other problem behaviors, and the possibility that prevention could be achieved through juvenile courts and correctional institutions was reason enough to support them.

By the early 1900s, juvenile courts had spread throughout the country. Clearly, some children were helped by their existence, but the juvenile courts did not always act in the kind and benevolent manner their supporters had envisioned. Nevertheless, juvenile court practice was not closely scrutinized until the 1960s.

During the 1960s, however, some of the shortcomings of existing juvenile court practice began to receive attention by the U.S. Supreme Court. In a series of important cases, the Supreme Court extended due process protections to juveniles. The essential thrust of the rulings was that juveniles had a right to some protection from the coercive powers of the juvenile court. However, whether all jurisdictions adhere firmly to the principle that juveniles are entitled to due process protections is in doubt. Indeed, there is considerable evidence that many juve- nile courts still operate in an informal manner, which in effect circumvents the due process protections supposedly available to juveniles and often works to the disadvantage of youths.

key ConCepTs

bail: The money or bond used to secure the release of a person charged with a crime. bill of particulars: In a lawsuit, a written itemization of claims or charges provided by the plaintiff at the defendant’s request; the document can serve as the factual basis of the allega- tions against the defendant. chancery court: English court that was primarily concerned with property rights. Chan- cery courts, first established during the Middle Ages, were partially based on the idea that children, particularly children who owned or were in a position to inherit property, should fall under the protective control of the king. It was in these courts that the concept of parens patriae was developed. Over time, the chancery courts became more involved in the general welfare of families and children. Because of its role in protecting the interests of children, it served as a model for the juvenile court.

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child savers: A group of reformers, mostly well-educated, middle-class Protestant women of Anglo-Saxon descent, who had the time and resources to fight for improved conditions for youths in jails and reformatories and who eventually played an important role in the creation of the juvenile courts. On the positive side, their work led to wider acceptance of adolescence as an important developmental stage of life, and they correctly believed that the adult criminal justice system was harmful to children or at best ineffective. On the negative side, their conservative ideas on the family and their “noblesse oblige” attitude toward the poor resulted in reforms that focused more on the social control of children and the pro- tection of the interests of the wealthy than on attacking the underlying causes of problem youth behaviors. dependent children: Children who are dependent on others for financial support or who do not have the support of a parent or guardian. due process: A course established for legal proceedings intended to ensure the protection of the private rights of the litigants. The essential elements of due process are (1) proper notice as to the nature of the legal proceedings, (2) a meaningful hearing in which the indi- vidual has an opportunity to be heard and/or defend him- or herself, and (3) the objectivity of the tribunal before which the proceedings take place.55

exclusionary rule: A procedural rule that prohibits evidence that is obtained by illegal means or in bad faith from being used in a criminal trial. Miranda warnings: Specific warnings given to a suspect prior to questioning that inform them that statements they make to law enforcement agents can be used against them in court. neglected children: Children who are not given appropriate care by the parent(s) or a guardian. parens patriae: The obligation of the government to take responsibility for the welfare of children. The doctrine of parens patriae recognizes the moral obligation of the government to take care of children when there is no family available or if the family is not suitable. pretrial discovery: Efforts of a party to a lawsuit to obtain information prior to trial. The theory behind discovery is that all parties should go to trial with as much information as possible. Progressive Era: A period in American history, lasting roughly from 1890 to 1924, during which a variety of economic, social, and political reforms and reform movements occurred, including women’s suffrage; trust busting; Prohibition; reduction in working hours; elimi- nation of child labor; adoption of social welfare benefits; and the popular voting measures of initiative, recall, and referendum. The reforms were primarily concerned with respond- ing to popular unrest and problems uncovered in the operation of economic, social, and political institutions.

review QuesTions

1. How did the social context of the 1800s influence the development of the “child-saving” movement?

2. Who were the child savers, and what was their approach to saving children? 3. According to the child savers, what caused youth crime and waywardness? 4. What legal mechanisms existed during the early and mid-1800s to respond to children

who engaged in crime or other problem behaviors?

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5. What were the facts of the Crouse case, what were the findings of the Pennsylvania Supreme Court, and why is this case significant?

6. What were the facts of the People v. Turner case, what were the findings of the Illinois Supreme Court, and how did this case influence the development of the juvenile court in Chicago?

7. What social and legal factors contributed to the development of the first statutorily rec- ognized juvenile court?

8. What were the essential characteristics of the first juvenile court? 9. What were the facts of the Fisher case, what were the findings of the Pennsylvania Supreme

Court, and why is this case significant? 10. What were the essential features of early juvenile court practice? 11. What issues were addressed by the U.S. Supreme Court in the Kent, Gault, Winship, and

McKeiver cases? What were the important Supreme Court rulings in these cases? 12. How did the Kent, Gault, Winship, and McKeiver cases influence the operation of the

juvenile courts? 13. Explain how the continuing informality of many juvenile courts circumvents the due

process protections extended to juveniles by the Supreme Court.

aDDiTional reaDings

Bernard, T. J., & Kurlychek, M. C. (2010). The cycle of juvenile justice (2nd ed.). New York: Oxford University Press.

Feld, B. C. (1999). Readings in juvenile justice administration. New York: Oxford Uni- versity Press.

Hemmens, C., Steiner, B., & Mueller, D. (2004). Significant cases in juvenile justice. Los Angeles, CA: Roxbury Publishing Company.

Krisberg, B., & Austin, J. F. (1993). Reinventing juvenile justice. Newbury Park, CA: Sage.

Platt, A. M. (1977). The child savers: The invention of delinquency (2nd ed.). Chicago: University of Chicago Press.

Tanenhaus, D. S. (2004). Juvenile justice in the making. New York: Oxford University Press.

Cases CiTeD

Commonwealth v. Fisher, 213 Pa. 48 (1905).

Ex parte Crouse, 4 Whart. 9 (Pa. 1838).

In re Gault, 387 U.S. 1 (1967).

In re Winship, 397 U.S. 358 (1970).

Kent v. United States, 383 U.S. 541 (1966).

McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

People v. Turner, 55 Ill. 280 (1870).

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noTes

1. Zinn, H. (1995). A people’s history of the United States, 1492–present. New York: Harper Perennial.

2. Finestone, H. (1976). Victims of change. Westport, CT: Greenwood Press. 3. Zinn, 1995. 4. Zinn, 1995. 5. Kelly, A. H., & Harbison, W. A. (1955). The American Constitution: Its origin and develop-

ment. New York: W. W. Norton, p. 612. 6. Clement, P. F. (1985). Families and foster care: Philadelphia in the late nineteenth century.

In R. Hiner & J. M. Hawes (Eds.), Growing up in America: Children in historical perspective. Chicago: University of Illinois Press.

7. Platt, A. M. (1977). The child savers: The invention of delinquency (2nd ed.). Chicago: University of Chicago Press.

8. Bernard, T. J., & Kurlychek, M. C. (2010). The cycle of juvenile justice (2nd ed.). New York: Oxford University Press; Platt, 1977.

9. Sommerville, C. J. (1990). The rise and fall of childhood. New York: Vintage Books; Tanenhaus, D. S. (2004). Juvenile justice in the making. New York: Oxford University Press.

10. Bernard & Kurlychek, 2010. 11. Platt, 1977. 12. Platt, 1977. 13. Mennel, R. M. (1973). Thorns and thistles: Juvenile delinquents in the United States, 1825–

1940. Hanover, NH: University Press of New England, p. 129. 14. Platt, 1977. 15. Platt, 1977, p. 119. 16. Bernard & Kurlychek, 2010. 17. Platt, 1977. 18. Bernard & Kurlychek, 2010. 19. Bernard & Kurlychek, 2010. 20. Bernard & Kurlychek, 2010; Platt, 1977. 21. Bernard & Kurlychek, 2010; Platt, 1977. 22. Waegel, W. B. (1989). Delinquency and juvenile control: A sociological perspective. Engle-

wood Cliffs, NJ: Prentice Hall. 23. Empey, L. T., Stafford, M. C., & Hay, C. H. (1999). American delinquency: Its meaning and

construction (4th ed.). Belmont, CA: Wadsworth. 24. Empey, Stafford, & Hay, 1999; Roberts, A. R. (1998). The emergence of the juvenile court

and probation services. In A. R. Roberts (Ed.), Juvenile justice: Policies, programs, and services (2nd ed.). Chicago: Nelson-Hall.

25. Bordelaise, C., & Miller, S. J. (1998). Juvenile justice in America (2nd ed.). Englewood Cliffs, NJ: Prentice Hall; Empey, Stafford, & Hay, 1999; Tanenhaus, 2004.

26. Tanenhaus, 2004. 27. Tanenhaus, 2004.

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28. Krisberg, B., & Austin, J. F. (1993). Reinventing juvenile justice. Newbury Park, CA: Sage. 29. Platt, 1977. 30. Bernard & Kurlychek, 2010. 31. Bernard & Kurlychek, 2010. 32. Bernard & Kurlychek, 2010. 33. Lindner, C., & Savages, M. R. (1984). The evolution of probation. Federal Probation, 48,

3–10; Roberts, 1998. 34. Platt, 1977. 35. Hacker, J. C. (1984). Canada. In M. W. Klein (Ed.), Western systems of juvenile justice.

Beverly Hills, CA: Sage. 36. Farrington, D. P. (1984). England and Wales. In M. W. Klein (Ed.), Western systems of

juvenile justice. Beverly Hills, CA: Sage. 37. Keener, H., & Weitekamp, E. (1984). The Federal Republic of Germany. In M. W. Klein

(Ed.), Western systems of juvenile justice. Beverly Hills, CA: Sage. 38. For a discussion of the Kent case, see Bernard & Kurlychek, 2010; Sanborn, J. B., & Salerno,

A. W. (2005). The juvenile justice system, law and process. Los Angeles, CA: Roxbury Pub- lishing Company.

39. Bernard & Kurlychek, 2010, p. 100. 40. Senna, J. J., & Siegel, L. J. (1992). Juvenile law: Cases and comments (2nd ed.).

St. Paul, MN: West. 41. Bortner, M. A. (1988). Delinquency and justice: An age of crisis. New York: McGraw-Hill,

42. McKeiver v. Pennsylvania, 403 U.S. 528 (1971). 43. McKeiver v. Pennsylvania (1971). 44. Bernard & Kurlychek, 2010; Bortner, 1988. 45. Sanborn & Salerno, 2005. 46. Bernard & Kurlychek, 2010. 47. Puritz, P., Burrell, S., Schwartz, R., Soler, M., & Warboys, L. (1995). A call for justice: An

assessment of access to counsel and quality of representation in delinquency proceedings. Washington, DC: American Bar Association.

48. Feld, B. C. (1991). Justice by geography: Urban, suburban, and rural variations in juvenile justice administration. Journal of Criminal Law and Criminology, 82, 156–210; Feld, B. C. (1989). The right to counsel in juvenile court: An empirical study of when lawyers appear and the difference they make. Journal of Criminal Law and Criminology, 79, 1185–1346; Feld, B. C. (1988). In re Gault revisited: A cross-state comparison of the right to counsel in juvenile court. Crime and Delinquency, 34, 393–424.

49. Feld, 1988. For similar results, see Burruss, G. W., & Kempf-Leonard, K. (2002). The questionable advantage of defense counsel in juvenile court. Justice Quarterly, 19, 37–68; Guevara, L, Spohn, C., & Herz, D. (2004). Race, legal representation, and juvenile justice: Issues and concerns. Crime and Delinquency, 50, 344–371.

50. Guevara, Spohn, & Herz, 2004.

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51. Bernard & Kurlychek, 2010. 52. Sickmund, M., Sladky, A., & Kang, W. (2012). Easy access to juvenile court statistics:

1985–2009. Retrieved from http://www.ojjdp.gov/ojstatbb/ezajcs/. 53. Jacobs, M. D. (1990). Screwing the system and making it work: Juvenile justice in the no-

fault society. Chicago: University of Chicago Press. 54. Mnookin, R. H., & Weisberg, D. K. (1989). Child, family, and state: Problems and materials

on children and the law (2nd ed.). Boston: Little, Brown & Co. 55. Black, H. C. (1968). Black’s law dictionary (4th ed.). St. Paul, MN: West; Herman v. Chrysler

Corp., 106 Mich App 709 (1981).

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Chapter ObjeCtives After studying this chapter, you should be able to

• Describe the role that individual citizens play in both the informal and formal juvenile justice process

• Describe the evolution of police responses to youths from colonial america to the present

• explain the three fundamental duties of the police and how these duties influence police responses to delinquent behavior

• explain why conflict is an inherent feature of policing and how this conflict influences how the police interact with juveniles and their families

• Describe the factors that influence police decisions to refer youths to the juvenile courts

• Define the concept of police diversion of juveniles, describe its history, and indicate how it is currently used in juvenile justice

• explain the effect of court decisions, such as Miranda v. Arizona and Schall v. Martin, on police interaction with juveniles, their families, and the courts

• Describe recent trends in police responses to juvenile offending

• Describe the focus and effectiveness of policing programs and strategies such as the D.a.r.e. program, community policing, and youth-oriented community policing in dealing with youths’ problem behavior

Chapter Outline introduction

Youths and the public: the informal juvenile justice process

police responses to juvenile Offenders

legal issues

Chapter summary

Key Concepts

Public and Police Responses to Juvenile Offenders

chapter

F O S T E R , C E D R I C 1 6 9 2 T S

■ introduction

This chapter examines citizen and police responses to youths who violate the law. First, it explores the role that the public plays in dealing with juvenile crime by describing the opera- tion of an informal juvenile justice process—one that consists of efforts by citizens to handle instances of juvenile crime that do not involve the police or other formal agents of juvenile jus- tice. Next, it examines police responses to juvenile offenders and presents a general overview of the history of youth-oriented policing. It then looks at contemporary issues regarding the polic- ing of juveniles and concludes with a discussion of recent trends in youth-oriented policing.

■ Youths and the public: the informal juvenile justice process

Examinations of the juvenile justice process usually begin with the police. The police do play a critical role in juvenile justice; in fact, they are the primary gatekeepers of the formal juvenile justice process. The public is also involved, however, because police contact with juveniles is usually the result of a citizen complaint or request for assistance. Thus, an examination of the juvenile justice system should arguably begin with the public.

Most juveniles engage in illegal behaviors at some time during their childhood. Although some juvenile delinquency consists of serious offenses committed against people, the great majority of delinquent acts are nonviolent. Moreover, people respond to this delinquency in a variety of ways. Some of these responses are informal, which means that they consist of the actions taken by members of the public without reliance on official juvenile justice agencies. Formal responses, in contrast, involve official agencies such as the police and the juvenile courts.

When citizens, whether adults or other juveniles, encounter or observe youths who they believe are engaging in illegal behavior, they may exercise any of a variety of options. One option is to ignore the offender. Another is to confront the offender. For example, a store clerk who observes a youth taking merchandise from a store shelf and attempting to leave the store may stop the youth and demand that the goods be returned, may lecture the youth and ban him or her from the store, may contact the youth’s parents and request that the parents take some action, may call the police, or may decide to take some other action. Importantly, citizens use discretion. Discretion is the power to act on one’s own authority.

Citizens regularly encounter juveniles involved in alleged violations of the law. Yet, in many instances, they do not contact the police. As just noted, an individual may choose to ignore the youth’s actions or deal with the youth in some way that does not involve the police or other formal agents of the juvenile justice process. The actions taken by parents, neighbors, business owners, teachers, and others constitute an informal juvenile justice process. Citizens regularly encounter youths engaged in illegal behaviors and decide to handle those situations themselves or seek the assistance of others outside the formal juvenile justice process. This

discretion The power to act on one’s own authority.

informal juvenile justice process

Actions to combat delinquency taken by parents, neigh-

bors, business own- ers, teachers, and

others who are not part of the formal

juvenile justice process.

review Questions

additional readings

Cases Cited

notes

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informal juvenile justice process is a potentially powerful mechanism that operates to control youths’ behavior. Moreover, the more that citizens rely on informal control mechanisms, and the more effective these control mechanisms are, the less necessary the formal processing of juveniles becomes.

Although many delinquent actions are handled informally, in other instances members of the public seek the assistance of formal juvenile justice agencies, such as the police or the juvenile courts, and most youths become involved in the formal juvenile justice process when citizens select this option. In short, in many instances, it is a combination of the public and the police that determines who the clientele of the formal juvenile justice process will be.

■ police responses to juvenile Offenders

The police are clearly an important component of the juvenile justice process. Indeed, the police usually determine who become formal juvenile justice clients. When citizens believe that juveniles are engaging in illegal or problem behaviors and seek the assistance of a formal juvenile justice agency, they usually turn to the police. This is because (1) the police are the most visible symbol of the juvenile justice process in the community and (2) they have the primary responsibility for identifying and processing youths who break the law. Consequently, how the police respond to juvenile offenders influences how many people view the juvenile justice process, and it influences who become the clients of the juvenile court.

Like the responses of other institutions to juvenile offenders, police responses are best understood by examining the historical development of policing, particularly as it relates to young people. Consequently, this section begins with a brief historical overview of youth- oriented policing, then examines more contemporary approaches to policing youths.

the history of policing Youths

The British colonists who settled the New World brought with them a variety of criminal justice institutions and practices, including English common law, a court system, punishments for crimes, and policing practices. However, colonial law enforcement suffered from a number of shortcomings, including inefficiency, corruption, and political interference.1 Those who had formal policing responsibility, such as constables, sheriffs, and members of the night watch, engaged in a variety of activities besides law enforcement. For example, sheriffs and other early law enforcement officers collected fees for various non–law enforcement tasks they performed, such as collecting taxes, conducting elections, and maintaining bridges and roads.2 This system encouraged early law enforcement officials to devote more time to civil functions that were safer and offered more regular income than law enforcement activities. As a result, law enforcement typically ranked among their less important areas of responsibility.3

Policing during the colonial period was primarily reactive and often ineffective. Those who had formal law enforcement duties responded to complaints brought to their attention, but they had limited resources to investigate offenses and engaged in few efforts to prevent crime. Indeed, most criminal cases in colonial America were initiated by citizens who brought complaints before a judge; rare was the case in which a citizen contacted the police in order to initiate an investigation.4 Rather than relying on formal mechanisms to control youth and adult behaviors, residents in colonial settlements relied more heavily on the family and the church.

MYth vs realitY During the earlY Years Of the uniteD states, infOrMal COntrOls Were the priMarY Means Of sOCial COntrOl

Myth—early colonial settlements established full-time police forces to maintain order. reality—Full-time police forces did not exist in colonial times. Indeed, the first full-time police forces in the United States were not developed until the early 1800s.5

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MYth vs realitY a laCK Of respeCt bY ManY Citizens Was a prObleM fOr earlY pOliCe OffiCers

Myth—During the late 1800s and early 1900s, most city residents had a great deal of respect for the friendly neighborhood patrol officer. reality—Many people lacked respect for the police, whom they saw as political hacks willing to use brutality to protect their bosses’ interests.6

By the early 1800s, industrialization, urbanization, population growth, and associated social problems, such as alcoholism, homelessness, riots, ethnic clashes, and lawlessness, led to the development of more formal methods of policing. Full-time police forces were created in larger cities during the 1830s and 1840s. By the 1870s, all the major cities had full-time forces, and many smaller ones employed part-time police officers.

In these early days, policing in the United States was community based. Police officers came from the communities in which they worked and were paid more than many other workers. They walked the beat in the neighborhoods they patrolled, usually spending from two to six hours of a 12-hour shift on foot patrol. However, police forces were small, beat officers had little contact with supervisors while on patrol, and turnover was high.7

A major problem that faced early policing organizations was corruption. Because the police were paid fees for the jobs they performed, they often saw themselves as private entrepreneurs rather than public servants. Also, policing was closely tied to local politics. Police jobs were a primary form of political patronage and were controlled by local political bosses. Police officers owed their allegiance to these political bosses and the police officials who awarded them their positions rather than to the public.8 As a consequence, they were careful to act in ways that protected the politically powerful, sometimes by ignoring illegal activities, such as gambling, prostitution, and after-hours liquor sales, and sometimes by participating in such activities themselves.9

Although some officers were undoubtedly respected by people in their communities, many citizens saw the police as servants of corrupt political machines.10 Many people were aware that the police helped rig elections, used force to control ethnic and racial minorities, served as strike breakers, and protected the interests of wealthy business owners.11 Not surprisingly, police officers often faced considerable hostility from both young and old, and juvenile gangs often made a sport of throwing rocks at the police and taunting them.12

The feeling was mutual. Many early police officers exhibited contempt for problem youths and were happy to dish out street justice. Yet it is also true that other police officers showed concern about youths who engaged in illegal behavior or who were felt to be potential offend- ers. For example, in his 1849 semiannual report to the mayor of New York, Chief of Police George W. Matsell noted the following:

I deem it to be my duty to call the attention of your Honor to a deplorable and growing evil which exists amid this community.… I allude to the constantly increasing numbers of vagrant, idle, vicious children of both sexes, who infest our public thoroughfares, hotels, docks.… Children who are growing up in ignorance and profligacy, only destined to a life of misery, shame and crime, and ultimately to a felon’s doom.… Left, in many instances to roam day and night … a large portion of these juvenile vagrants are in the daily practice of pilfering wherever opportunity offers, and begging where they cannot steal. In addition to which, the female portion of the youngest class, those who have only seen some eight or twelve summers, are addicted to immoralities of the most loathsome description. Each year makes fearful additions to the ranks of these prospective recruits of infamy and sin, and from this corrupt and festering fountain flows on a ceaseless stream to our lowest brothels—to the Penitentiary and the State Prison!13

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In dealing with youth crime and waywardness, the police employed a variety of tactics. Some of these tactics involved formal responses to youth crime, such as arrest. Indeed, police officers during this era had almost unlimited authority. They could place a youth in a house of refuge, seek the detention of a youth in a jail, or refer a youth to a criminal court (which could place the youth in a jail or prison). However, police officers also employed a variety of informal, not always legal, tactics in dealing with the young. Some officers developed close working relationships with both youths and adults in their community; this undoubtedly helped officers steer youths away from crime. In some instances, officers warned and coun- seled children. On still other occasions, police dispensed street justice by harassing, verbally abusing, or beating up problem youths.14

American policing underwent important and fundamental changes during the 1900s. Essentially, these changes resulted from two factors: the development of professional policing standards and the improvement of communications technology, which led to changes in the nature of police work and police administration.15

The push toward police professionalism grew during the Progressive Era (roughly 1880 to 1920). This period saw a variety of social movements that focused attention on problems such as economic abuses, social welfare problems, and political and police corruption. Two of the primary architects of reform were Richard Sylvester, superintendent of the District of Columbia police force from 1898 to 1915 and president of the International Association of Chiefs of Police (IACP) from 1901 to 1915, and August Vollmer, chief of police in Berkeley, California, from 1905 to 1932. Sylvester was instrumental in turning the IACP into an effec- tive national police association that advocated for progressive police reform. Vollmer was an important innovator who developed modern police administrative methods and championed increased education for police officers. However,Vollmer did more than just advocate for these reforms. He hired graduates of the University of California to work on the Berkeley force and organized the first police science courses at the university in 1916.16

The reform agenda for police pushed by Vollmer, Sylvester, and others had a number of goals: “eliminating political influence, appointing qualified chief executives, establishing a mission of nonpartisan public service, raising personnel standards, introducing principles of scientific management, emphasizing military-style discipline, and developing specialized units.”17 The development of specialized units in police departments was an important event in youth-oriented policing in the United States. In the early 1900s, one type of specialized police unit that began to appear was the juvenile unit (sometimes called a youth aid bureau, juvenile bureau, juvenile control bureau, juvenile division, or crime prevention bureau). The development of specialized juvenile units spread during the early 1900s as professionally ori- ented departments began to think more about delinquency and crime prevention.18

One significant aspect of early delinquency prevention efforts was that they became the mechanism by which women initially entered policing. The first woman to be hired as a police officer was Mary Owens, who was given a job by the Chicago Police Department in 1893 after her husband, a Chicago police officer, was killed in the line of duty. Owens made visits to the juvenile court and helped detectives on cases involving women and girls.19 In 1905, Lola Baldwin was hired by the Portland, Oregon, Police Department. Baldwin had a background in social work, and her primary responsibility was to protect young girls and women and to prevent their involvement in crime. Indeed, women were felt to be particularly suited to dealing with the needs of children, which led several departments around the United States to follow Portland’s lead by hiring women to act as police social workers.20

The concept of delinquency prevention spread to a number of large police departments during the early 1900s, and by 1924, approximately 90% of the nation’s largest cities had specialized juvenile programs that placed welfare officers in high-crime neighborhoods and assigned police officers to juvenile courts. Other innovative police programs, such as specialized

arrest Legally authorized deprivation of a person’s liberty. As a general rule, a per- son is under arrest when he or she is not free to walk away.

reform agenda for police Agenda consisting of items such as the following: eliminat- ing political influ- ence and corruption, appointing qualified leaders, establishing the ideal of nonpar- tisan public service, raising personnel standards, imple- menting scientific management prin- ciples, instituting military-style disci- pline, and creating “specialized” units.

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juvenile crime units, relief programs that gave toys to children at Christmas, speakers’ bureaus that gave presentations to youth organizations (e.g., the Boy Scouts and Camp Fire Girls), and police athletic leagues, were also developed.21

fYi

today, more than 350 law enforcement agencies around the country operate paLs (police athletic/activity Leagues) that serve more than 1.5 million youths between 5 and 18 years old. according to the Lexington, Kentucky, paL, their mission is:

• to fight crime and drug abuse • to improve the health of our children • to provide children with self-esteem and confidence • to provide social skills • to encourage a lifelong motivation and appreciation for participation in sports and physical activity • to help build a strong family unit and community through sports, activities, and education22

In the 1950s, two additional events highlighted the growing importance of juvenile offi- cers in police departments around the country. In 1955, the Central States Juvenile Officers Association was formed, followed by the International Juvenile Officers Association in 1957. Both of these organizations worked toward the development of professional standards and procedures for handling juveniles.23

During the 1960s and 1970s, the importance of the police role in the handling of juvenile offenders was given additional support through the Law Enforcement Assistance Adminis- tration (LEAA). LEAA provided federal funding for the development of hundreds of new police programs, a number of which targeted youths.24 One of these programs, police diver- sion, became popular in a number of jurisdictions. Police diversion programs were intended to steer youths away from the formal juvenile justice process by providing various services to youths and their families. Although the services varied from jurisdiction to jurisdiction, they often included individual counseling, recreational programs, social skills training, and the development of parenting skills.25 Other programs developed during this period included leadership and moral training programs, job assistance programs, and programs intended to reduce school truancy.26

In the late 1970s and 1980s, many police departments, particularly small ones, faced budget cuts and rethought the operation of specialized youth divisions. These departments did away with or reduced the size of specialized juvenile units.27 Nevertheless, others developed still more specialized units that focused on family violence and gangs (issues that were becoming more problematic for police, especially in large jurisdictions). Many departments began to focus increased attention on juvenile crime during the late 1980s and the early 1990s due to concerns about increases in juvenile violence during that period. Today, a diverse range of police programs and responses to juvenile crime can be found around the country.

the role of the police in Modern society: implications for policing juveniles

In order to understand the role of police in modern society, it is necessary to consider the “rights and duties” as well as “the normatively approved patterns of behavior” for those in law enforcement.28 Roles have both sociological and psychological dimensions. Sociologi- cally, the role of police consists of the position that policing has within the social structure and the activities of those who perform policing functions. Obviously, police have consid- erable power and responsibility, and they perform a variety of duties as part of their job.

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Psychologically, the police role is composed of the attitudes and beliefs that people (including the police themselves) have about those in policing. Importantly, the public and the police have certain expectations for those who work in policing, and these expectations are related to police performance.29

One thing is quite clear: The role of police in contemporary society is complex and often characterized by conflict.30 Some scholars who have studied the police argue that the police role has three basic functions: law enforcement, service, and order maintenance.31 The law enforcement role of the police is directed toward the detection, apprehension, and prevention of illegal behavior, and the collection of evidence that can be used in the prosecution of cases in court. Police efforts to enforce legal statutes, including traffic, juvenile, and criminal codes as well as investigating crimes, chasing and arresting suspects, transporting suspects to jail, enforcing traffic laws, engaging in routine patrol, and appearing in court, are all examples of the law enforcement role performed by the police.

The service role of the police encompasses efforts by the police to assist citizens in a variety of ways. Indeed, police play a central role in providing a range of services to members of the community who, because of personal, financial, economic, social, or other circumstances, need assistance.32 Service activities include assisting motorists with stalled vehicles, giving directions to motorists and others, providing various types of information to citizens, giving first aid to injured or ill people, escorting ambulances or fire trucks, responding to the needs of people with mental health problems, and providing a variety of other services to members of the public.

The order maintenance role of the police encompasses their efforts to intervene in situ- ations that threaten to disturb the peace or that involve face-to-face conflicts between two or more individuals. Examples of order maintenance include resolving a dispute between a tenant and a landlord or between a store clerk and a customer, dealing with a noisy drunk, and responding to a group of rowdy college students at a fraternity party. Drunkenness and rowdiness are behaviors disapproved of by some members of the public, and those who disap- prove of these behaviors often ask the police to control or stop them.33

The order maintenance role of the police is important for several reasons. First, order maintenance activities account for as much as 80% of police activity.34 Second, actions that disrupt the public order have the potential to erupt into violence. Third, police have consid- erable discretion in handling public order situations.35 Fourth, these situations often involve juveniles and their families. Police regularly encounter individual youths, as well as youths in large and small groups, who may be perceived by individual police officers and some members of the community as potentially threatening to the public order.

The most appropriate police response to situations where there is a perceived threat to public order is not always clear, however. Police feel obligated to assist people who have com- plaints about the behavior of juveniles, yet behaviors that members of the public find threaten- ing or annoying are not necessarily illegal. Police officers may feel that a group of youths on a street corner represents a potentially problematic situation that demands intervention, but the youths have a constitutional right to congregate and express themselves, a right that the police are obligated to protect. As a result, the police may find themselves in a no-win situa- tion. If they fail to disperse a rowdy group of teenagers, citizens may complain that the police are ineffectual or do not care. If they break up the group, they open themselves to a charge of police harassment. The attitudes and behaviors exhibited by both police and juveniles in these encounters can play a large role in shaping the attitudes that police and juveniles have of one another.

As this example indicates, police often experience police role conflict caused by their differ- ent responsibilities. They are expected to prevent crimes and respond to the illegal behaviors of

police role conflict Clash between the duty of police to investigate crimes and prevent indi- viduals from com- mitting crimes and the duty of police to protect the rights of offenders, crime victims, and other citizens.

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individuals, including juveniles, but they also are expected to protect the rights of all citizens. In addition, the police recognize that the public does not want them to enforce all laws and that full enforcement of the law is actually counterproductive. For example, many police recognize that the arrest of a juvenile for a minor illegal activity, such as pushing another child down on a community playground (an assault), might result in more harm than good and could be better dealt with in a more informal manner.

Because police encounters with juveniles are frequent, they often occur under stressful conditions, and they play an important role in shaping the attitudes that police and juveniles have toward one another. Therefore, it is imperative that police be carefully trained in deal- ing with youths. Police departments have used two basic training approaches. One approach involves training individual officers in how to approach juveniles. This approach is more appro- priate for small departments that have little specialization; officers in small departments may receive little training that focuses specifically on dealing with juveniles. The second approach involves developing specialized units to deal with more serious juvenile cases and is more likely to be found in large departments with specialized units. However, the quality of train- ing given to individual officers in handling juvenile matters, and in some cases the training of specialized juvenile officers, varies considerably across departments.36 Some rural and small police departments do not have officers who are specially trained to deal with juveniles.37 In contrast, other departments have given extensive training to officers to help them respond to juvenile crime more effectively.38

MYth vs realitY pOliCing is CharaCterizeD bY rOle COnfliCt

Myth—the public expects the police to enforce all laws. reality—the public expects the police to engage in selective law enforcement. For example, few citizens want the police to strictly enforce all traffic laws. Indeed, the police recognize that strict enforcement of all traffic laws would result in considerable conflict between themselves and citizens.

the police: the gatekeepers of the formal juvenile justice process

Clearly, police work is characterized by complexity and conflict. Nevertheless, police play a crucial role in juvenile justice because they act as primary gatekeep- ers to the formal juvenile justice process. For exam- ple, in 2008, 83% of the delinquency cases referred to the juvenile courts came from the police. In addi- tion, police agencies were the primary referral source

for 53% of court referrals involving running away from home, 91% of the referrals involving liquor law violations, and 18% of truancy referrals.39 Like citizens, however, the police also exercise discretion in the handling of juvenile cases. Among other options, police officers may choose one of the following:

• Warn and release the juvenile. • Take the youth into custody and release the juvenile to his or her parents. • Take the youth into custody and refer the juvenile to a diversionary program operated

by the police or a community agency. • Take the youth into custody and refer the juvenile to the local juvenile court or court

intake unit. • Take the youth into custody and request the youth be detained

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factors that influence police Decisions to arrest juveniles

Describing the typical police response to juveniles is difficult because there is considerable variability in the options available in different jurisdictions and in how individual police officers approach juvenile suspects. The factors that influence police decision making include (1) the seriousness of the offense; (2) the police organization, particularly its policies and culture; (3) the community, including the resources available in the community for responding to youths’ problems; (4) the wishes of complainants; (5) the demeanor and presentation of the youth; (6) the gender of the youth; and (7) the race and social class of the youth.

Offense Seriousness The most important factor influencing police–juvenile encounters is the seriousness of the offense. Regardless of the other factors, as the seriousness of the offense increases, so does the likelihood of arrest. Indeed, most police–juvenile encounters involving felony offenses result in an arrest.40 Most police–juvenile encounters, however, involve minor offenses. Only 5% to 10% involve felonies.41 Consequently, in the majority of police–juvenile interactions, other factors play an important role in determining how police react.

Police Organization and Culture Police departments, like other types of organizations, develop their own particular styles of operation. They also develop a variety of formal and informal policies and procedures for handling juveniles involved in various types of illegal behaviors.42 As a result, police departments vary in how they respond to juveniles. For example, one study that catego- rized police departments according to the extent to which they employed a legalistic style of policing (characterized by a high degree of professionalism and bureaucratic structure) found that the more legalistic departments were more likely to arrest juvenile suspects than less legalistic departments.43 A study of four Pennsylvania communities found that the percentages of juveniles referred to court varied considerably from one community to another. In one community, only 9% of the juveniles who had police contacts were referred to court, whereas in another community, 71% were referred.44 Similarly, a study of 48 depart- ments in southern California found that virtually all juveniles arrested by one department were referred to court, but that in another department, the great majority of juveniles were counseled and released.45

Clearly, there is considerable variability in how police departments respond to juvenile offenders, and this variability is partially a product of differences in department organizational characteristics, department policies and procedures, and culture. However, police departments do not operate in a political and social vacuum. They are influenced by the communities in which they operate. Consequently, community characteristics and attitudes toward the police also can influence police responses to juvenile offenders.

The Community Influence on Policing One factor that can influence how police handle juvenile suspects is whether community programs for handling juvenile offenders exist. In some communities, officers may have a variety of options, including programs that provide individual, group, or family counseling; assist with conflict resolution; or provide restitution to victims. In other communities, options are more limited.

Communities also influence policing in a variety of other ways. Through their interac- tion with the local community, police develop assumptions about the community, the people who reside and work there, and the ability and willingness of community members to assist in responding to crime and delinquency. When a police officer encounters a member of the community—whether a suspect, a complainant, or a witness to an alleged offense—the officer’s interaction with that person is colored by his or her attitude toward the community and the subgroups that compose it. Consequently, in order to understand how communities

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influence policing, it is necessary to consider the attitudes police and community members have toward one another.

Research suggests that police departments operate differently in lower-class communi- ties than in wealthier communities. The behavior of police in a specific community seems to be a reflection of what police expect as well as the realities of policing that community. Police expect lower-class communities to have higher crime rates, they are aware that more arrests occur in those communities than in wealthier communities, and they are aware that lower-class communities have few resources for informally responding to the wide array of problems experienced in those communities. Consequently, when police come into contact with juveniles in lower-class areas, formal responses are likely because informal responses are felt to be unrealistic. Indeed, research on the effect of neighborhood socioeconomic status has found that as the socioeconomic status of the neighborhood increases, the likelihood of a police–juvenile encounter ending in arrest declines.46

Community attitudes toward the police also exert some influence on police actions. Although the police often feel that the public is hostile toward them, the reality is that most citizens have a positive attitude toward the police. For example, citizens have more confidence in the police than they have in a number of other American institutions, including the presi- dency, public schools, television news, the U.S. Supreme Court, big business, banks, organized labor, Congress, church and organized religion, and the medical system.47

It is true, however, that certain subgroups have less favorable views of the police than people in general. In a 2011 Gallup poll, 43% of blacks, compared with 61% of whites, reported a great deal of confidence in the police; and 26% of blacks, compared with 8% of whites, indicated they had little or no confidence in the police.48 When only adolescents are considered, there is some evidence that adolescents’ views of the police become more negative as they become older.49 An early study that examined the attitudes of almost 1,000 junior high students in Cincinnati found that hostility toward the police increased as the students moved through their junior high years. This same study found that lower-class youths were less likely to have positive attitudes toward the police than upper-class youths.50 Indeed, there is some evidence that lower-class male youths have little confidence in the police and subscribe to a “street code” that stresses “taking care” of oneself rather than relying on the police.51 Moreover, several other studies have found that many minority youths do not have favorable attitudes toward the police, and in some communities, substantial percentages of minority youths report hav- ing had negative experiences with the police, such as being harassed, mistreated, searched, and subjected to disrespectful language.52

Similar findings have been seen in several more recent studies as well as in public opin- ion polls that examine public confidence in American institutions, including the police. This research indicates that youths in high-crime and minority neighborhoods often hold negative views of the police.53 Such attitudes are important in a police–juvenile encounter because they can affect how the encounter unfolds and the extent to which the parties are satisfied with the outcome.

The Wishes of Complainants As noted earlier, many police–juvenile interactions result from citizen complaints. Further- more, what police do in a complaint situation typically depends on whether the complainant is present and what the complainant would like the police to do. For example, one study of police–juvenile encounters found that when the complainant requested informal action on the part of the police, police officers always did what the complainant wanted. If the complainant asked that an arrest be made, officers complied with this request about 60% of the time.54 In a replication of this study done eight years later, other researchers reached similar conclusions. The results of this study indicated that when citizens and suspects were both present and when citizens indicated clear preferences regarding how they wanted the police to respond, police

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usually complied with these requests. The researchers concluded, based on these findings as well as the findings of the earlier research, that citizens “largely determine official delinquency rates” because their wishes are accorded considerable weight by the police.55

The Demeanor and Presentation of the Offender As one might expect, how youths present themselves during a police encounter can affect whether police officers decide to make an arrest. Interestingly, youths who are unusually antago- nistic or unusually polite are more likely to be arrested. In contrast, youths who are moderately respectful are less likely to be arrested—as long as the offense is not serious.56 Apparently, police officers have basic expectations regarding the behavior of those they have interaction with. They expect suspects to be neither overly hostile nor unusually polite. When suspects’ behaviors fall outside the boundaries of those expectations, the likelihood of arrest increases.57

The Gender of the Offender Gender also appears to influence arrest decisions, particularly when status offenses are involved. However, the research in this area has produced mixed results. Some studies that examined the relationship between gender and the decision to arrest found that girls are less likely to be arrested for criminal offenses than boys, even when prior criminal record and offense serious- ness are taken into account.58 However, other studies indicate that any gender bias that existed in the past has diminished or disappeared over time,59 although other research indicates that gender continues to influence arrest decisions in some locations.60 Still other research indicates that the relationship between gender and arrest decisions is more complex than it first appears. For example, one study that examined police–suspect encounters in 24 police departments found that arrest rates for males and females (both juveniles and adults) were similar. However, the researchers also discovered that police officers used different arrest criteria for males and females, which resulted in younger females receiving harsher treatment than older females. No differences between younger and older males were found. This suggests that, at least in those departments, police took a more paternalistic stance toward younger females, increasing the likelihood of formal processing.61 Overall, this research suggests that although gender may not play a significant role in police decision making in some jurisdictions, in combination with other factors, such as the type and seriousness of delinquent offense and girls’ demeanor, it continues to influence practices in other locations.

Unlike the research on the relationship between gender and arrests for criminal offenses, the research on the relationship between gender and the processing of status offense cases is generally consistent. A number of studies have found that female status offenders are more likely to be formally processed than male status offenders.62 Even studies that found that differentials in the processing of criminal offenses have declined over time report gender dif- ferentials in the processing of status offenses.63

The Race and Social Class of the Offender Strong evidence exists that the race and the social class of juveniles also influence police deci- sion making in many jurisdictions. Minority and poor youth are disproportionately represented in arrest statistics. However, the relationship between race or social class and police decision making is complex, which makes straightforward descriptions of this relationship difficult.

After reading the following true story, list the factors that you believe contributed to the behavior of the police. Do you feel the police handled this situation appropriately? How do incidents such as this influence police–community relations?

These events took place in 1975. A friend and I had just completed playing a high school bas- ketball game. We had just left our high school, Pontiac Northern, on our way to meet with other members of the team. I was driving, and my friend was in the passenger seat. As we passed a major intersection, we saw police lights flashing, although they were still some distance away. As we approached the next major intersection, we saw four police cars, one at each corner of the

status offense An act considered to be an offense partly because of the status of the person who performed the act. For example, juveniles (i.e., indi- viduals who have a juvenile status) must obey the reasonable rules of their par- ents, attend school, and live at home. If they fail to do any of these things, they could be arrested and brought into the court system. Adults do not have to do any of those things and cannot be arrested for refusing to do them.

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intersection. As I entered the intersection, each of the police cars pulled into the intersection and cut off the car I was driving. The officers exited their cars with their guns drawn and demanded that we get out of the car. We asked what we had done. Did we do anything wrong? They told us to shut up and get out of the car. As we got out of the car, they grabbed us and threw us to the ground with their guns pushed against the backs of our necks. While we were on the ground, they asked us questions about a robbery that had taken place. We said we didn’t know anything about it. We told them that we had just finished playing a high school basketball game and were on our way to a party. They told us we were lying. They said a gas station in the neighborhood had been held up, and we fit the description. After we were on the ground for a short time, they said we could go. We asked, “What’s going on?” Their response was that they had a line on who the perpetrators were. We argued with them about how we had been treated and asked why they had stopped us. They said we fit the description. What description was that, we asked. Their response was, “Two African American males, about 5' 11'', short hair.” I remember laughing about it at the time because it fit the description of just about every other black male I knew. They didn’t like us questioning their treatment of us. They then searched our car and told us that if we weren’t quiet they would take us to the station. The way I saw it was that just being black makes you a suspect in the eyes of many police. Prior to this, I had no personal experiences with the police, although I had witnessed a number of negative encounters between the police and other people in my neighborhood. After this incident, my trust and faith in the police were greatly diminished. (Felix Brooks, Former Juvenile Probation Officer, MA, political science)

Research on the relationship among race, social class, and delinquency has found that lower-class minority youths are especially likely to be arrested, even when taking into account both prior criminal records and offense seriousness.64 Such findings indicate that police deci- sions to arrest are biased against minority and poor youths in some communities. They may be even more biased against minority and poor youths who act in an unusual manner or appear to be unconventional in some other way.

As criminologist James Q. Wilson notes: The patrolman believes with considerable justification that teenagers, Negroes, and lower-income people commit a disproportionate share of all reported crimes; being in those population categories at all makes one, statistically, more suspect than other people; but to be in those categories and to behave unconventionally is to make oneself a prime suspect. Patrolmen believe they would be derelict in their duty if they did not treat such people with suspicion, routinely question them on the street, and detain them for longer questioning if a crime has occurred in the area.65

In contrast, a number of other studies have failed to find strong evidence of police bias,66 while admitting that a number of factors make interpreting the relationship among race, class, and arrest difficult. For example, the effect of race on the decision to arrest could be compli- cated by other factors, such as police decisions to focus their attention on poor and minority areas, the wishes of the complainants, and the demeanor of the offender.

Based on the available evidence, it appears that there are differences in how police depart- ments treat poor and minority youths in some communities.67 It also appears that in urban areas, where minority populations tend to be large, police are more likely to engage in dis- criminatory practices,68 although more research on police–youth encounters in small towns and rural areas is needed in order to make definitive conclusions about police–youth contacts in urban and nonurban areas.69

The discriminatory treatment of minority and poor youths should not be interpreted to mean that police in large urban areas are blatantly racist or hold biased attitudes toward the poor. Although some police officers, like people in other occupations, are racist or strongly biased against the poor, the disproportionately high arrest rate for lower-class and minority youths may be better understood as an outgrowth of institutional racism and bias—that is, the ways in which basic social institutions operate to keep minorities and poor people in subor- dinate positions.

institutional racism and bias

The ways that basic social institutions

operate to keep minorities or poor people in subordi-

nate positions. If police believe that minorities or poor people have fewer

resources to respond to youth problems,

believe that minority communities foster

more crime, and believe that minority

group members are more hostile to the police, it increases the likelihood that

police will focus more crime-fighting resources in minor-

ity communities, resulting in increases

in arrests for crime, police–citizen hostil-

ity, and neighbor- hood problems.

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Police decisions to concentrate their surveillance activities in lower-class or minority communities, for example, increase the likelihood that they will uncover delinquent behaviors in those communities. High rates of delinquency in such communities may be partial prod- ucts of long-term patterns of discrimination. Furthermore, when police encounter youths in a lower-class or minority community, some youths will present a hostile demeanor caused by past unpleasant encounters with the police, which, in turn, increases the probability that the police will respond in a more forceful way. Such interactions reinforce police perceptions that more forceful responses are justified, but at the same time, they encourage more negative community perceptions and responses toward the police. The result is a cycle of action and reaction that results in negative police–juvenile encounters and increased numbers of arrests.

COMparative fOCus

Countries vary Widely in police responses to Youths

In thailand, youths are not considered to be criminally responsible for their behaviors. consequently, they are treated differently from adults, and no youth younger than the age of 14 years can be punished. Moreover, arrests of youths are possible only when a youth has committed a flagrant offense, an injured person has insisted on an arrest, or a warrant is issued under the code of criminal procedure.70 In contrast, in Saudi arabia, there is no defined age of responsibility, and young males may be detained for offenses such as eating in restaurants with girls or making lewd comments to women in shopping malls. Moreover, the punishment for youths is the same as the punishment for adults. For minor offenses, such as those previously mentioned, flogging may be used.71

As the above discussion makes clear, a number of factors have been found to influence police decisions to arrest youths. The factors discussed above have been those that have received the most attention from researchers. However, there is evidence that a range of other factors can also influence police decision to arrest, at least under some circumstances. For example, police in some jurisdictions may be more likely to arrest youths who are out late at night or intoxicated, and younger officers may be more likely to arrest juveniles.72

police processing of juvenile Offenders

Two types of police units have the most contact with juveniles: patrol units and specialized juvenile units (although not all departments have specialized juvenile units). Of these two, patrol units have the most contact with juveniles.73 Specialized juvenile units and youth divi- sions typically serve as referral units that accept juvenile cases from other departmental divi- sions.74 Juvenile units are usually small,75 but they often conduct juvenile investigations on their own, particularly investigations of serious juvenile crimes. There is no agreement among police officials regarding the best response to juveniles who engage in minor types of delin- quent behavior. Some maintain that police should adopt a strict law enforcement approach that focuses on enforcing laws and making juvenile arrests when law violations occur. In contrast, others argue that a crime prevention approach that favors diversion, except in the case of serious offenses, is preferable.76 Many patrol officers and their supervisors support the crime prevention approach for nonserious juvenile offenses. This approach also is supported by labeling theorists, who call for radical nonintervention. Radical nonintervention involves avoiding formal action whenever possible in order to avoid the harmful labeling and stigma- tization of youths that may lead to additional delinquent behavior. However, as you will see later in this chapter, overall, police have become more formal in their processing of juvenile cases by referring a greater percentage of juvenile cases to the courts.

When a police officer encounters a juvenile who has committed an illegal act, the officer must make a decision regarding the best way to handle the case. As noted earlier, the decision

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the officer makes can be influenced by a variety of factors. One option, of course, is to make an arrest (in some jurisdictions this is referred to as “taking into custody”). For practical purposes, an arrest is considered to have taken place if the youth is not free to walk away.

As a general rule, the basis for arresting a juvenile is the same as the basis for arresting an adult. The officer needs to have probable cause, which means that the officer has reason to believe that an offense has been committed and that the youth to be arrested committed the offense. The U.S. Supreme Court rulings in Gault and Kent as well as subsequent court cases raise the question of whether special standards should apply to the arrest of a juvenile and whether the police can deal with juveniles in the same way they deal with adults.

One of the key issues surrounding the arrest of juveniles is the interrogation of juvenile suspects. However, before determining whether special standards apply to the interrogation of juveniles, we need to look at the standards that apply to the interrogation of adults. The most important case regarding this issue is Miranda v. Arizona.77 Ernesto A. Miranda had been arrested for kidnapping and rape and was in the custody of the Phoenix police. He was identified by the complaining witness and was interrogated for two hours without being noti- fied of his right to have an attorney present. Finally, the police produced a signed confession, on which was a typed statement indicating that the confession was voluntary and “with full knowledge of my legal rights.”78

In its decision, the U.S. Supreme Court indicated the following: We hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subject to questioning, the privilege against self- incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege. … He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires … unless and until such warnings and waiver are demonstrated by the prosecution at trial. No evidence obtained as a result of interrogation can be used against him.79

In its decision, the court clearly stated that adults cannot be held in custody for long periods of time and cannot be questioned without being specifically advised of rights regarding an attorney in order to protect the Fifth Amendment right to be free from self-incrimination. If these circumstances that Ernesto Miranda found himself in were so coercive as to make his confession inadmissible, what types of circumstances would make the confession of a juvenile inadmissible?

The U.S. Supreme Court addressed this issue in 1979, in the case of Fare v. Michael C.80 Michael C. was 16 years old at the time of his arrest on suspicion of murder. He was taken to the police station and, before questioning, was fully advised of his rights per Miranda. He was on probation to the juvenile court, and he asked to see his probation officer. The police denied this request. He proceeded to talk to the police without an attorney, making statements and drawing sketches that implicated him in the murder.

In this case, the court indicated the following: “Thus the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused, in fact, knowingly and voluntarily decided to forgo his rights to remain silent and to have assistance of counsel.”81 The court cited age, past contacts and experience with the police, whether the juvenile was involved with the juvenile court, and the youth’s intelligence as factors that were to be weighed as part of the “totality of circumstances.” The court also mentioned whether the juvenile was “worn down” by improper interrogation tactics employed by the police or tricked by them as additional factors to review. In Fare v. Michael C., the confession was determined to be admissible by the court.

The “totality of the circumstances” test was not a new one; it had been articulated by the Supreme Court of California in People v. Lara.82 In this case, the court held that the

probable cause Grounds sufficient to convince a rea-

sonably competent person that a crime was committed and

that the suspect committed it.

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factors to be reviewed in order to determine that a confession by a juvenile is voluntary included the juvenile’s age, intelligence, education, experience, and ability to comprehend the meaning and effect of the statements made. This holding is interesting, because in Fare v. Michael C., a California case, the Supreme Court of California ruled the juvenile’s confession inadmissible, but the U.S. Supreme Court, adopting a similar test, ruled it admissible. As this example makes evident, courts looking at the same set of facts can interpret or construe them differently.

Fare v. Michael C. is important because it required courts to examine a variety of factors in determining whether information obtained from juveniles by the police could be used in court. It is also important because it indicated that parents, guardians, custodians, other significant adults, or attorneys do not have to be present when juveniles are interrogated by the police. Although the “totality of circumstances” test may sound reasonable, courts look at police conduct with hindsight that sometimes falls below 20/20 acuity. In many areas of society, children are recognized as being fundamentally different from adults. For example, minors cannot own property, sign business contracts, or engage in other adult behaviors because they are considered minors. They can, however, by themselves, confess to a murder. A strong argument can be made that this is illogical.

The issue of self-incrimination by juveniles also was given some attention by the Supreme Court of New Hampshire in the case of State v. Benoit. Here the court stated, “Courts employing the totality of the circumstances test do so under the belief that juvenile courts are equipped with the expertise and experience to make competent evaluations of the special circumstances surrounding the waiver of rights by juveniles.”83 The court went on to list 15 circumstances that juvenile courts should consider. Juvenile courts, however, may not routinely perform the appropriate evaluations. The expertise and experience of the court that is charged with the responsibility of protecting a juvenile’s rights is a key factor in determining whether those rights are, in fact, protected. Unfortunately, the experience and expertise of many juvenile courts in this area are questionable.

The Benoit decision also articulated the main alternative to the “totality of the circum- stances” rule—namely, the “interested adult” rule. According to this rule, adopted by a few jurisdictions, no juvenile can waive the privilege against self-incrimination without having had the opportunity to consult with and have present an adult who is “friendly” to the juvenile and who understands the juvenile’s rights.

The effect of the Benoit holding was to increase the totality factors by adding three more factors:

1. The juvenile must be informed of his or her rights in language understandable to him or her.

2. The juvenile must be made aware of the possibility of adult criminal prosecution or waiver, if applicable.

3. When the juvenile is arrested, the officer in charge must immediately secure from the juvenile the name of a “friendly adult” the juvenile could consult.84

Thus, the New Hampshire Supreme Court attempted to blend the “interested adult” test into the “totality of the circumstances” test by making the securing of a friendly adult one of the voluntary factors to be considered.

Although the preceding legal cases are concerned with tests to determine when evidence obtained by the police is admissible in court, little is known about actual interrogation prac- tices employed by the police when they encounter juvenile suspects. What is known, however, indicates that police likely use the same interrogation tactics with juveniles as they do with adults—tactics such as psychological coercion, trickery, and deceit. Moreover, although police may understand that youths lack the comprehension abilities of adults, they may not employ their understanding in the interrogation of juveniles. This is particularly troubling because

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these types of interrogation techniques appear to increase the likelihood of false confessions among youths.85

fYi

Very little is known about police interrogation of juveniles. however, one study of 66 police interrogations of juveniles conducted by Barry Feld of the University of Minnesota Law School found that police in ramsey county, Minnesota, used the same interrogation techniques with juveniles as they used with adults.86 Similar find- ings have been reported in a study of more than 300 police investigators in Baltimore.87 this is an important finding because, as Feld notes, there is clear evidence from developmental psychology that juveniles lack the competence of mature adults in legal proceedings, and this is particularly true for those under 16 years of age.88 this raises important questions regarding additional protections that might be afforded juveniles who face a police interrogation.

One important difference in the handling of juveniles and adults at the arrest stage is that juveniles are more likely to be detained pending trial than adults who have committed similar offenses. The U.S. Supreme Court, in Schall v. Martin, ruled that preventive deten- tion of juveniles is permissible.89 This case concerned Gregory Martin, age 14 years, who was arrested on December 13, 1977, and charged with first-degree robbery, second-degree assault, and criminal possession of a weapon. At 11:30 p.m., he and two other juveniles had hit a youth on the head with a loaded gun and stolen his jacket and sneakers. When arrested, Martin had the gun in his possession and lied to the police about where and with whom he lived. He appeared in New York Family Court on December 14 with his grandmother and was ordered detained because he had been in possession of a loaded gun, because he had lied to the police about his home address, and due to the late hour of the incident. A probable cause hearing was held on December 19, and probable cause was found on all charges. At a fact-finding hearing held December 27 through December 29, he was found guilty. He had been detained a total of 15 days.

In this case, the court ruled that “Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents; and, if parental control falters, the state must play its part as parens patriae. … In this respect, the juvenile’s liberty interest may, in appropriate circumstances, be subordinated to the state’s parens patriae interest in preserving and promoting the welfare of the child.”90 The court went on to point out that every state and the District of Columbia permit the preventive detention of juveniles:

The fact that a practice is followed by a large number of states is not conclusive … as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.” … We conclude that the practice serves a legitimate regula- tory purpose compatible with the “fundamental fairness” demanded by the Due Process Clause in juvenile proceedings.91

There are several ramifications of the Schall decision. Parens patriae, an idea associated with the juvenile court, played an important role in this decision. In fact, the idea that a juvenile should and must be under someone’s control is a long-standing principle in U.S. law. As long as juvenile courts have time guidelines for the setting of meaningful hearings so that juveniles do not languish in detention, the constitutional right to be free from “excessive bail,” found in the Eighth Amendment, takes a back seat to society’s interest in the supervision and control of juveniles. Nevertheless, the punitive nature of some detention facilities, the possibility of a child’s victimization in detention, and the widespread use of detention in some jurisdictions raise serious questions about the practice of detaining juveniles prior to adjudication.

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MYth vs realitY ManY YOuths are arresteD anD DetaineD fOr MinOr Offenses

Myth—Most youths detained by police have committed serious offenses and pose a threat to community safety. reality—Most youths detained in many jurisdictions have not committed serious offenses against people. Moreover, in many jurisdictions, the great majority of youths who are detained pending a court hearing are released at the hearing because they are felt to pose no threat to community safety.

The exact procedures that police must follow when taking a juvenile into custody vary from state to state and are spelled out in state juvenile codes and in police department poli- cies. However, these codes and policies typically require officers to notify the juvenile’s par- ents that the juvenile is in custody when an arrest is made. Often, police request that parents come to the police station or the officer transports the youth home prior to any questioning. If the officer feels that detention of the juvenile is appropriate, the juvenile is transported to a juvenile detention facility or, in some jurisdictions, to an adult jail if a juvenile detention facility is unavailable. If the juvenile is released to his or her parents, the juvenile and parents are informed that they will be contacted by the court at a later date about their case. After the release of the juvenile, the officer completes the complaint by collecting any additional information needed to establish the offense. The completed complaint is then forwarded to the next stage of the juvenile justice process for further action. If the juvenile is detained in a juvenile detention facility or adult jail, the processing of the complaint is expedited because juvenile codes require that a detention hearing be held to determine the appropriateness of detention, and the complaint will be needed at the hearing.

The interrogation and detention of juvenile suspects are sources of considerable contro- versy. At the heart of the interrogation controversy is a debate over the age at which juveniles are mature enough to fully understand the importance of their rights and the potential conse- quences associated with their waiver. Research indicates that many youths do not understand their rights when arrested. In one study, about one-third of a sample of institutionalized youths incorrectly believed that they had to talk with the police. The study also found that about one- third of the parents of these youths would advise them to confess to the police.92 In another study, more than half of the youths examined lacked a full understanding of the Miranda warnings.93 Moreover, as noted above, the evidence from developmental psychology indicates that youths are psychologically less mature than adults.94 Such findings raise concerns about the vulnerability of many youths when they are questioned by the police and the reality that youths receive fewer protections than those given to adults. Concern over the detention of juveniles revolves around the fact that preventive detention amounts to punishment of some- one before he or she has been found guilty of an offense. Moreover, the conditions youths are sometimes exposed to in detention units and adult jails raise additional worries.

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research on proven false confessions indicates that about one-third come from persons under age 18 years.95

trends in police processing of juveniles

In 1973, approximately 50% of all juveniles taken into police custody were referred to juvenile court, approximately 45% were handled within the police department and released, and slightly more than 1% were referred to adult or criminal courts. However, the percentage of youths taken into custody and referred to juvenile courts has been increasing over time. By 2010,

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approximately 68% of youths taken into custody by the police were referred to juvenile court, 23% were handled within the police department and released, and 8% were referred to adult or criminal courts (see Table 6-1).96 These data indicate the existence of three important trends in police processing of juveniles: (1) the referral of more youths to juvenile court, (2) the handling of fewer cases within police departments, and (3) the referral of more youths to adult courts.

the police and Delinquency prevention

Although police are becoming more formal in their processing of juvenile cases, many police departments also devote resources to delinquency prevention. Indeed, such efforts have a num- ber of advantages. For example, by preventing youths from engaging in delinquent activities, police spare youths the stigma associated with formal juvenile justice processing. Delinquency prevention also spares juvenile courts the time and costs associated with processing cases and allows the police and the courts to focus more time on serious juvenile offenses and adult crime.

bOx 6-1 InteRvIew: LaRRy BROOk, ChIef Of POLICe, RIChmOnd, ky

Q: You’ve been in law enforcement for over 37 years, counting your time in the Military police (Mp) service. could you provide a brief overview of your law enforcement experience prior to becoming police chief?

a: I first became involved in law enforcement in 1974 when I entered the U.S. army. I enlisted and was assigned to the Military police corps as a correctional specialist. after working two years in an area confinement Facility (a fancy way of saying stockade), I was transferred to regular duty with the Military police. after leaving the military, I began my civilian law enforcement career in 1979 as a patrol officer with the police department in richmond, Kentucky. I worked as a patrol officer and detective during my five years with the department. I followed that by accepting a position as a special agent with the U.S. Bureau of alcohol, tobacco, Firearms, and explosives (atF). I worked 23 and a half years for atF, serving as an agent in the cleveland, Ohio, and London, Kentucky, Field Offices, and as a supervisor in the cleveland Field Office before retiring in 2007. Shortly thereafter, I accepted the position as richmond police chief.

Q: What attracted you to the field of law enforcement? a: Law enforcement was not my first career choice. I aspired to be a journalist. even after my stint in the

Military police corps, I still had the desire to be a journalist. however, after a couple of years in civilian law enforcement, I felt compelled to remain in the field. I liked the idea of serving the community, helping others, and bringing order to otherwise chaotic situations. In law enforcement, you have many opportunities to have a positive impact on the lives of others.

Q: In your opinion, what are some of the advantages and disadvantages of working in law enforcement? a: It is definitely a double-edged sword. Some of the advantages include the satisfaction gained from helping

others in difficult times or situations, protecting those that cannot protect themselves, and effecting change in the community. particularly satisfying is being able to help young folks turn their lives around after they have stumbled. another thing I appreciate is the job security. Disadvantages would include sub-par pay in most cases, the tendency to become cynical, the fact that it often seems to be a thankless job, job burnout, that there is often too much political interference, and frustration from the lack of resources available to provide help to those struggling in life and who are the most in need.

Q: With respect to youths in the community, what are most pressing problems your department deals with? a: the most significant problem is the lack of parental control and involvement with their children. Many

parents seem to want to abrogate their roles to the police or the schools rather than fulfilling their respon- sibilities. When a parent calls us to get their 6-year-old child to go to school, there is something wrong. too many young people are not taught respect for others—not the police, teachers, adults, nor each other. consequently, we see too many domestic disputes, school altercations, and fights. a lack of after-school activities often leaves young people with free time that frequently leads to involvement in vandalism, theft, and drugs. We have seen some attempts at the establishment of gangs, but we have been able to contain that in our community through enforcement and educational programs.

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taBLe 6-1 percent Distribution of juveniles taken into police Custody by Method of Disposition, 1972–2010

referred to juvenile court jurisdiction

handled within department and

released

referred to criminal or adult court

referred to other police

agency

referred to welfare

agency

1972 50.8% 45.0% 1.3% 1.6% 1.3%

1973 49.5 45.2 1.5 2.3 1.4

1974 47.0 44.4 3.7 2.4 2.5

1975 52.7 41.6 2.3 1.9 1.4

1976 53.4 39.0 4.4 1.7 1.6

1977 53.2 38.1 3.9 1.8 3.0

1978 55.9 36.6 3.8 1.8 1.9

1979 57.3 34.6 4.8 1.7 1.6

1980 58.1 33.8 4.8 1.7 1.6

1981 58.0 33.8 5.1 1.6 1.5

1982 58.9 32.5 5.4 1.5 1.6

1983 57.5 32.6 4.8 1.7 3.1

1984 60.0 31.5 5.2 1.3 2.0

1985 61.8 30.7 4.4 1.2 1.9

1986 61.7 29.9 5.5 1.1 1.8

1987 62.0 30.3 5.2 1.0 1.4

1988 63.1 29.1 4.7 1.1 1.9

1989 63.9 28.7 4.5 1.2 1.7

1990 64.5 28.3 4.5 1.1 1.6

1991 64.2 28.1 5.0 1.0 1.7

1992 62.5 30.1 4.7 1.1 1.7

1993 67.3 25.6 4.8 0.9 1.5

1994 63.2 29.5 4.7 1.0 1.7

(continues)

Q: You and members of your department have been very involved in efforts to prevent delinquency in the community. You were involved in reopening the richmond teen center, you are on the center’s board, you work closely with community groups in attempting to better meet youths’ needs in the community, and your department has taken the initiative in operating a summer camp for youths for several years. could you say something about why you have a taken a leadership role in these areas?

a: there are a couple of reasons. First, I remember from experience that when kids don’t have positive activi- ties to be involved in during their free time, they will find other things to do that are often unproductive, if not delinquent. When I was a youngster, the times I got into trouble were when I had no organized and productive activities to be involved in, so I substituted mischievous activities. the second reason was that a parent in the community told me that a lot of our youths were afraid of the police. I felt that in most cases it wasn’t because of interactions the kids had with the police, but rather the result of stories being told to them by others, mostly adults. We needed to do something to overcome this and let our young people have the opportunity to see police officers in another light, establishing more positive relationships. For example, in our summer camp, we try to incorporate life skills training, provide kids with exposure to other aspects of life that they might not otherwise get the opportunity to experience, and communicate that we are their friends, not their enemies.

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One of the most widely used prevention programs is the D.A.R.E. program. (D.A.R.E. is an acronym for drug abuse resistance education.) This program, originally developed in Los Angeles, targets youths from kindergarten through 12th grade. The program is unique because it uses uniformed police officers who present a structured curriculum designed to help youth avoid peer pressure and avoid drugs and violence. According to the D.A.R.E. web- site, the program is currently offered in 75% of the nation’s school districts and in more than 43 countries around the world.97 Although D.A.R.E. has numerous corporate, foundation, and governmental sponsors, and its website claims that it is highly successful, multiple evaluations of various versions of D.A.R.E. have produced few positive results. Some research indicates that exposure to the D.A.R.E. program can increase students’ knowledge about drugs and enhance their social skills. In addition, it appears to influence students’ attitudes about drugs, their perceptions of the police, and their self-esteem. However, the positive effects associated with D.A.R.E. dissipate rapidly after the program ends. Moreover, with the exception of tobacco, D.A.R.E.’s ability to influence drug use has not been demonstrated.98

Another popular school-based prevention program initially developed by the Phoenix Police Department and sponsored by the Bureau of Alcohol, Tobacco, and Firearms is G.R.E.A.T. (Gang Resistance Education and Training). Like D.A.R.E., G.R.E.A.T. consists of a cur- riculum that is taught by police officers in elementary and middle schools and is found in almost every state. G.R.E.A.T. has also undergone a curriculum revision that was designed to make the program more interactive

and to help youths better understand the relationship between gangs and violence, learn what

taBLe 6-1 (continued )

referred to juvenile court jurisdiction

handled within department and

released

referred to criminal or adult court

referred to other police

agency

referred to welfare

agency

1995 65.7 28.4 3.3 0.9 1.7

1996 68.6 23.3 6.2 0.9 0.9

1997 66.9 24.6 6.6 0.8 1.1

1998 69.2 22.2 6.8 0.9 1.0

1999 69.2 22.5 6.4 1.0 0.8

2000 70.8 20.3 7.0 1.1 0.8

2001 72.4 19.0 6.5 1.4 0.7

2002 72.8 18.1 7.0 1.4 0.7

2003 71.0 20.1 7.1 1.2 0.6

2004 69.5 20.8 7.9 1.3 0.5

2005 70.7 20.2 7.4 1.3 0.4

2006 69.3 20.8 8.2 1.2 0.5

2007 69.6 19.5 9.4 1.2 0.4

2008 66.3 21.9 10.2 1.1 0.5

2009 67.4 22.3 8.8 1.1 0.5

2010 67.7 22.6 7.9 1.4 0.5 Source: Maguire, K., ed. (2012). Sourcebook of Criminal Justice Statistics (table 4.26.2010). retrieved from http://www.albany.edu/sourcebook /pdf/+4262010.pdf.

courtesy of the FBI

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http://www.albany.edu/sourcebook/pdf/+4262010.pdf

can be done about gangs, set goals, and develop a variety of social competencies, including communication and conflict resolution skills.99 Evaluations of the G.R.E.A.T. program have produced some positive results, although a major goal of the program, to prevent youths from participating in gangs, may not be achieved. Nevertheless, G.R.E.A.T. has been associated with the development of more prosocial attitudes (including more favorable attitudes toward the police), less risk-taking behavior, less victimization, and less favorable attitudes toward gangs. Moreover, the evidence suggests that police officers can have a positive impact on youths.100

Youth-Oriented Community policing

Another significant trend in policing in recent years has been the development of problem- oriented and community policing strategies. In problem-oriented policing, police attempt to identify problems that encourage criminal behavior and take steps to remedy these prob- lems.101 In community policing, police rely on the community to identify problems that can be cooperatively addressed by the police and the community.102 Both of these approaches are based on the realization that, in order to reduce crime, police need to take a more proactive approach in dealing with crime-generating community problems instead of simply reacting to citizen complaints after crimes occur.

Community policing employs a number of strategies, including the following:

• moving officers from their patrol cars to positions of direct contact with community residents (intended to give officers information about problems that exist in the com- munity and ideas for solutions)

• changing the officers’ main mode of behavior from reactive (responding to crimes committed) to proactive (preventing crimes)

• making police operations more visible to the public and increasing police accountability • decentralizing police operations, thereby allowing individual officers to develop greater

familiarity with the needs of the communities they police and to better respond to those needs

• encouraging officers to view citizens as partners in dealing with community problems related to crime, thereby improving relations between police and citizens

• placing more decision-making power in the hands of community policing officers, who know the community, its problems, and its expectations

• developing relationships between police and citizens that foster public initiatives aimed at preventing and solving crimes.103

A more recent variant of community policing is known as youth-oriented community policing. Youth-oriented community policing programs have multiple goals: providing multi- agency responses to children and their families in order to prevent future delinquent behavior and adult criminality; working with youths who are already involved with the juvenile courts in order to reduce the likelihood of recidivism; involving neighborhood residents in efforts to improve their communities; and developing closer relations between community residents and public officials, including police officers. The strategies employed to achieve these goals, although varied, often include the provision of specialized training to police officers and the development of cooperative multi-agency teams to address community problems. The spe- cialized training given to police officers might focus on topics such as child development, the psychological effect of family violence on children, assisting victims of crime, fostering effec- tive collaboration between citizens and police, and handling mental health issues. The multi- agency teams are typically staffed by representatives of mental health agencies, schools, social service agencies, health departments, universities, and neighborhood associations, among others. These teams focus on prevention by identifying family and community problems that negatively affect youths and lead to delinquent behavior.104

community policing A policing strategy in which police attempt to identify and understand the social context of delinquent and criminal behavior and then work with the local community to rectify the prob- lems causing crime rather than simply reacting to crime by arresting and incar- cerating offenders.

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One thing that makes community policing stand out from other policing strategies is its focus on the social context in which delinquency takes place. Rather than simply reacting to juvenile crime, youth-oriented community policing requires law enforcement agencies to identify societal factors related to delinquency and to take positive steps to address those factors in order to prevent delinquency. As a result, youth-oriented community policing is more theory and research oriented than traditional policing strategies. By having a clear understanding of factors that encourage delinquency in the community, those using a youth- oriented community policing approach are in a better position to prevent as well as respond to delinquent behavior.

COMparative fOCus

japanese police play an important role in Delinquency prevention

In Japan, the police have developed crime prevention associations and conduct company–police conferences and school–police conferences designed to prevent youth crime. In addition, they have established police boxes (Koban) in urban areas where youths congregate and police houses (Chuzaisho) in rural areas that are intended to help police respond to and prevent problems in the community. Moreover, Japanese police stations contain departments of community safety that are intended to coordinate local delinquency prevention efforts, and they contain police counselors who are responsible for counseling youths and their parents, referring clients to local services, and supporting juvenile crime victims. Finally, the police encourage the development of a variety of voluntary associations and support the efforts of various individuals involved in providing preven- tion services to youths.105

Another development in policing that is conceptually related to youth-oriented community policing has been the placement of police officers, often called school resource officers (SrOs), in schools. Although SRO programs have been in schools since the 1960s, they have become more common over time.106 By 2009, 68% of students reported the presence of either security guards or police officers in their schools.107

SROs perform a variety of roles in schools, and these roles vary from school to school. SROs may provide training to school staff and parents on delinquency and criminal justice issues, provide instruction as part of D.A.R.E. and G.R.E.A.T. programs, provide basic counseling to students who are having problems, help prevent and solve school problems, chaperone school events, and develop positive relations with students. In addition, SROs are law enforcement officers who engage in routine patrol of school property, direct traffic, and take steps to identify and respond to illegal behavior by students and staff.108

The presence of police in schools is felt by many to have a number of benefits, particularly in light of well-publicized incidents of school violence, including school shootings, concerns about school disruption in many schools, and perceptions (although not always accurate) that juvenile crime is becoming more serious. Moreover, there is some evidence that police, when they work in concert with educators, parents, and community groups, can play an important role in meeting the social justice needs of youths in the community and form strong police–school partnerships.109 There are, however, other instances when police involvement in the schools can pose a number of serious problems. Police in schools can result in the criminal- ization of behaviors that were previously handled effectively by schools as part of the informal juvenile justice process. Consider the 2007 case of Desre’e Watson, a 6-year-old in Avon Park, Florida, who was arrested, handcuffed by the police, taken to the police station, fingerprinted, and charged with battery on a school official (a felony), disruption of a school function, and resisting a law enforcement officer (both misdemeanors) for throwing a temper tantrum in school.110 Bob Herbert of the New York Times reported on his interview with the police chief regarding this case: “But she was six,” Herbert said. The chief responded immediately, “Do

school resource officers (SrOs)

Law enforcement officers who may perform a variety

of roles in schools, such as problem

solving and school, student, and staff

support, in addition to more traditional

police roles.

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you think this is the first six-year-old we’ve arrested?” As Herbert insightfully notes, once you begin to see ordinary childhood misbehavior as criminal, “it’s easy to start seeing young children as somehow monstrous.” He further quotes Chief Mercurio: “Believe me when I tell you . . . a six-year-old can inflict injury to you just as much as any other person.”111 The tendency to criminalize children’s school behavior is more common than many believe. For example, in Dallas and other places in Texas, police officers issue class “C” misdemeanor citations in schools for behaviors such as truancy, violations of school dress codes, and classroom disrup- tion. Fines that are associated with these citations can add up to thousands of dollars if not paid, build up a youth’s criminal history, and expose youths to more serious sanctions in the future, such as arrest and detention. As a result, more than one in seven Texas students have now been involved with the juvenile justice system, and students who are detained are three times more likely to end up in adult prison. Critics of these practices argue that they create a school-to-prison pipeline that is particularly disadvantageous to poor, special education, and minority youths who are more likely to struggle in school and cannot afford to pay the fines or defend themselves in court.112

CRItICaL thInkIng QuestIOn

What steps should the police take to protect the rights of juveniles who are in their custody?

■ legal issues

Although the relationship between police and citizens is a long-standing concern in U.S. law, the relationship between children and police has also received attention. Many contend that children, because of their lack of maturity, should have special protections when faced with arrest or interrogation by police. Exactly how far the police should go in protecting juveniles and which specific protections should be given to juveniles are, however, matters of debate. What is your perspective on this issue?

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Chapter suMMarY

This chapter examined police and public responses to juvenile crime. As noted at the begin- ning of the chapter, citizens make up an informal juvenile justice process that responds in a variety of ways to youthful misbehavior. The ability of this informal juvenile justice process to handle juvenile misbehavior determines the extent to which formal components of the juvenile justice process become involved in the lives of youths.

Although many youth offenses are handled by citizens without official assistance, citizens frequently choose to involve the police, and in some cases the police initiate contact with youths on their own. When police become involved, they play a critical role in juvenile jus- tice because they serve as the primary gatekeepers of the formal juvenile justice process. Of particular significance is the fact that the police exercise discretion in how they handle alleged instances of juvenile delinquency. How the police decide to handle a juvenile case can have important ramifications for community safety as well as for the child and his or her family. In addition, how the police handle juveniles raises several legal issues regarding the relations between juveniles and the police and how far the police should go in protecting juveniles’ rights. These issues have received some attention by the courts in cases such as Fare v. Michael C., People v. Lara, State v. Benoit, and Schall v. Martin. However, many people are still concerned that youths may be denied important legal protections when confronted by the police, and this lack of protection can result in youths being harmed because of their involvement with juvenile justice agencies.

Data on the police processing of juveniles indicate that the police are becoming more for- mal in their responses to youths. Nevertheless, some police departments have also developed a variety of new strategies to deal with juveniles, such as youth-oriented community policing. To some extent, these strategies reflect the recognition by the police that their effectiveness as crime fighters requires good relationships with all members of the community, including youths. In addition, they appear to be tied to the increased emphasis on crime prevention and the growing popularity of community policing found in some police departments. However, the extent to which police departments will embrace these strategies and their effectiveness remains to be seen. Some police efforts to develop closer relationships with schools appear to have some potential to prevent juvenile crime and reduce school problems. There is evidence, however, that more punitive approaches to youths in school settings by police and school officials increase youths’ exposure to the justice system and serve as part of a school-to-prison pipeline. Thus, increasing the police presence in schools should be approached with consider- able caution.

key COnCePts

arrest: Legally authorized deprivation of a person’s liberty. As a general rule, a person is under arrest when he or she is not free to walk away. community policing: A policing strategy in which police attempt to identify and under- stand the social context of delinquent and criminal behavior and then work with the local community to rectify the problems causing crime rather than simply reacting to crime by arresting and incarcerating offenders. discretion: The power to act on one’s own authority. informal juvenile justice process: Actions to combat delinquency taken by parents, neigh- bors, business owners, teachers, and others who are not part of the formal juvenile justice process.

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institutional racism and bias: The ways that basic social institutions operate to keep minorities or poor people in subordinate positions. If police believe that minorities or poor people have fewer resources to respond to youth problems, believe that minority communi- ties foster more crime, and believe that minority group members are more hostile to the police, it increases the likelihood that police will focus more crime-fighting resources in minority communities, resulting in increases in arrests for crime, police–citizen hostility, and neighborhood problems. police role conflict: Clash between the duty of police to investigate crimes and prevent individuals from committing crimes and the duty of police to protect the rights of offend- ers, crime victims, and other citizens. probable cause: Grounds sufficient to convince a reasonably competent person that a crime was committed and that the suspect committed it. reform agenda for police: Agenda consisting of items such as the following: eliminating political influence and corruption, appointing qualified leaders, establishing the ideal of nonpartisan public service, raising personnel standards, implementing scientific manage- ment principles, instituting military-style discipline, and creating “specialized” units. school resource officers (SROs): Law enforcement officers who may perform a variety of roles in schools, such as problem solving and school, student, and staff support, in addition to more traditional police roles. status offense: An act considered to be an offense partly because of the status of the person who performed the act. For example, juveniles (i.e., individuals who have a juvenile status) must obey the reasonable rules of their parents, attend school, and live at home. If they fail to do any of these things, they could be arrested and brought into the court system. Adults do not have to do any of those things and cannot be arrested for refusing to do them.

RevIew QuestIOns

1. What is the informal juvenile justice process, and how is it related to formal juvenile justice agencies?

2. What are the typical responses available to the public when they come into contact with juvenile offenders?

3. What were the basic characteristics of policing during the colonial period? 4. What problems in policing did the progressive reforms of the late 1800s and early 1900s

attempt to address? 5. What innovations in youth-oriented policing occurred between the early 1900s and the

1970s? 6. What are the basic roles of the police, and how do these roles influence police–juvenile

interactions? 7. What options do police officers have when dealing with youths who have allegedly broken

the law? 8. What factors influence police discretion? 9. What procedures do the police follow when taking a youth into custody?

10. What tactics do police use in the interrogation of juveniles, and what are potential prob- lems with the use of these tactics?

11. What are the important court cases concerning the interrogation of juveniles by the police, and what do these cases require the police to do?

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12. In what ways have trends in the police processing of juveniles changed over the past 20 years?

13. What recent strategies or programs have been developed by the police to help them pre- vent or more effectively respond to delinquency? What do these strategies or programs attempt to do?

14. What are the potential benefits and costs associated with the presence of law enforcement officers in schools?

addItIOnaL ReadIngs

Bazemore, G., & Senjo, S. (1997). Police encounters with juveniles revisited: An explor- atory study of themes and styles in community policing. Policing: An International Journal of Police Strategy and Management, 20, 60–82.

Chesney-Lind, M., & Shelden, R. G. (2004). Girls, delinquency and juvenile justice (3rd ed.). Belmont, CA: Thompson/Wadsworth.

Krisberg, B. (2005). Juvenile justice: Redeeming our children. Thousand Oaks, CA: Sage.

Lundman, R. J., Sykes, R. E., & Clark, J. P. (1978). Police control of juveniles: A replica- tion. Journal of Research in Crime and Delinquency, 15(1), 74–91.

Meyer, J. R., & Reppucci, N. D. (2007). Police practices and perceptions regarding juve- nile interrogation and interrogative suggestibility. Behavioral Sciences and the Law, 25, 757–780.

Price, P. (2009). When is a police officer an officer of the law? The status of police offi- cers in schools. Journal of Criminal Law and Criminology, 99, 541–570.

Senna, J. J., & Siegel, L. J. (1992). Juvenile law: Cases and comments (2nd ed.). St. Paul, MN: West Publishing Co.

Walker, S., & Katz, C. M. (2008). The police in America: An introduction (6th ed.). New York: McGraw-Hill.

Cases CIted

Fare v. Michael C., 442 U.S. 707 (1979).

Miranda v. Arizona, 384 U.S. 436 (1966).

People v. Lara, 67 Cal.2d 365 (1967).

Schall v. Martin, 467 U.S. 253 (1984).

State v. Benoit, 490 A.2d 295 (NH 1985).

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98. Clayton, R. R., Cattarello, A., & Walden, K. P. (1991). Sensation seeking as a potential mediating variable for school-based prevention interventions: A two-year follow-up of DARE. Journal of Health Communications, 3, 229–239; Ringwalt, C. L., Greene, J. M., Ennett, S. T., Iachan, R., Clayton, R. R., & Leukefeld, C. G. (1994). Past and future direc- tions of the D.A.R.E. program: An evaluation review. Research Triangle Park, NC: Research Triangle Institute. This resource cites personal communication with C. Dunn, June 22, 1993; Rosenbaum, D. P. (2007). Just say no to D.A.R.E. Criminology and Public Policy, 6, 815–824; Rosenbaum, D. P., Flewelling, R. L., Bailey, S. L., Ringwalt, C. L., & Wilkinson, D. L. (1994). Cops in the classroom: A longitudinal evaluation of Drug Abuse Resistance Education (DARE). Journal of Research in Crime and Delinquency, 31, 3–31.

99. For information on the G.R.E.A.T. curriculum, see http://www.great-online.org/. 100. Esbensen, F. (2002). National evaluation of the Gang Resistance Education and Train-

ing (G.R.E.A.T.) program, final report. Washington, DC: U.S. Department of Justice; Esbensen, F., Peterson, D., Taylor, T. J., Freng, A., & Osgood, D. W. (2004). Gang preven- tion: A case study of a primary prevention program. In F. Esbensen, S. G. Tibbetts, & L. Gaines (Eds.), American youth gangs at the millennium. Long Grove, IL: Waveland, pp. 351–374; Esbensen, F., Peterson, D., Taylor, T. J., Freng, A., Osgood, G. W., Car- son, D.C., et al. (2011). Evaluation and evolution of the Gang Resistance Education and Training (G.R.E.A.T.) program. Journal of School Violence, 10, 53–70.

101. Goldstein, H. (1990). Problem-oriented policing. New York: McGraw-Hill. 102. Trojanowicz, R., Kappeler, V. E., Gaines, L. K., & Bucqueroux, B. (1998). Community

policing: A contemporary perspective (2nd ed.). Cincinnati, OH: Anderson. 103. National Institute of Justice. (1992). Community policing in the 1990s. National Institute

of Justice Journal, 225, 2–8. 104. Office of Juvenile Justice and Delinquency Prevention. (1996). Participants resource packet

for the Youth-Oriented Community Policing National Satellite Teleconference. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

105. Elrod, P., & Yokoyama, M. (2006). Juvenile justice in Japan. In P. C. Friday & X. Ren (Eds.), Delinquency and juvenile justice systems in the non-Western world. Monsey, NY: Criminal Justice Press.

106. National School Safety and Security Services. (2012). School resource officers. Retrieved from http://www.schoolsecurity.org/resources/school-resource-officers.html.

107. Robers, S., Zhang, J., Truman, J., & Snyder, T. D. (2012). Indicators of school crime and safety: 2011. Washington, DC: National Center for Education Statistics, U.S. Department

Notes 161

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http://www.dare.org/home/default.asp

of Education, and Bureau of Justice Statistics, Office of Justice Programs, U.S. Depart- ment of Justice.

108. See Travis, L. F., & Coon, J. K. (2005). The role of law enforcement in public school safety: A national survey. Washington, DC: National Institute of Justice.

109. Brady, K. P., Balmer, S., & Phenix, D. (2007). School–police partnership effectiveness in urban schools: An analysis of New York City’s impact schools initiative. Education and Urban Society, 39, 455–478.

110. Price, P. (2009). When is a police officer an officer of the law? The status of police officers in schools. Journal of Criminal Law and Criminology, 99, 541–570.

111. Herbert, B. (2007, April 9). 6-year-olds under arrest. New York Times, Op-Ed, p. A17. Retrieved from http://select.nytimes.com/2007/04/09/opinion/09herbert.html. Quoted in Price, 2009, p. 549.

112. Robinson, N. (2012, April 14). The school to prison pipeline. BBC World Service. [Radio Broadcast]. Retrieved from http://www.bbc.co.uk/programmes/p00qh8pf.

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Chapter ObjeCtives After studying this chapter, you should be able to

• Define the concept of diversion and describe how it is used in dealing with youths who violate the law

• Describe the social context of the 1960s and 1970s and indicate how it encouraged the development of diversion programs

• explain why juvenile justice might be seen as a type of diversion from the criminal justice process

• Describe the theoretical underpinnings of the concept of diversion

• Describe specific diversion programs and whether or not they are effective

• Describe common problems with diversion programs and how these problems affect youths and families

Chapter Outline introduction

early efforts at Diversion

the theoretical Foundation of Diversion

the social Context of the 1960s and the popularization of Diversion

the policy implications of societal reaction theory

Other rationales for Diversion programs

the spread of Diversion programs since the 1960s

Contemporary Diversion strategies and programs

the effectiveness of Diversion

legal issues

Chapter summary

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■ introduction

Although there is a lack of agreement on how to define diversion, the intent of diversion is to respond to youths who violate the law in ways that keep them out of (divert them from) the formal juvenile justice process.1 Diversion is based on the fact that formal responses to youths who violate the law, such as arrest and adjudication, do not always protect the best interests of children, nor do such responses necessarily protect the community. Indeed, some formal responses may be harmful to many youths and increase the likelihood of future delinquent behavior. This is because formal processing may cause a youth to develop a negative or delin- quent self-image,2 may stigmatize a youth in the eyes of significant others,3 or may subject a youth to inhumane treatment. In addition, formal processing may restrict a youth’s oppor- tunities to associate with law-abiding peers or to engage in conventional activities, thereby increasing the chances of future delinquent activity. Consequently, efforts to divert youths from the juvenile justice process (e.g., by warning and releasing) as well as efforts to divert youth to specific diversionary programs (e.g., counseling and community service programs) have long been a part of juvenile justice practice. In addition, in recent years, diversion has been touted as a way to reduce the problem of minority overrepresentation in juvenile justice.4

This chapter provides an overview of the history of diversion programming. In addition, it examines the theoretical rationale for diversion and explores various types of diversion programs and their effectiveness. The chapter concludes by discussing a number of potential problems that confront diversion programs as well as issues that should be considered prior to the development and implementation of these interventions.

■ early efforts at Diversion

Efforts to divert children from normal criminal justice processing have a long history. Prior to the development of specialized correctional institutions for youths in the 1800s, children were subject to the same laws and the same criminal justice process as adults. Nevertheless, there is considerable evidence that they were often spared the harshest penalties because of their age. Historically, police officers, sheriffs, constables, and others responsible for law enforcement have at times decided to ignore the illegal actions of youths. At other times, law enforcement officers have handled matters on their own, by warning youths, returning them to their parents for punishment, or meting out punishment themselves. To some extent, efforts to spare youths from the most severe punishments or to let them escape punishment altogether were based on the recognition that the young were, in important ways, different from older persons and that formal or severe punishments would rarely benefit the youth or the community.

diversion The processing of

youths who are alleged to have vio-

lated the law in ways that avoid the formal

juvenile justice process.

Key Concepts

review Questions

additional readings

notes

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The development of the houses of refuge in the early 1800s and the juvenile court move- ment in the late 1800s and early 1900s are often cited as early examples of efforts to divert youths from the adult criminal justice process.5 Indeed, the houses of refuge were established, in part, to divert children from the harsh conditions of adult correctional institutions, which were seen by the child savers as harmful to youths and likely to produce more dangerous offenders.6 As a result, the child savers of the late 1800s and their supporters helped establish juvenile courts in an effort to divert children from adult jails and prisons and from adult courts, which were often reluctant to sanction and control wayward children.7

Although diversion has a long history, the development of routine diversionary strategies and specialized diversion programs has substantially increased since the late 1960s. The decade of the 1960s was a time of widespread social unrest, increases in juvenile arrests, and critical scrutiny of basic institutions, including juvenile justice. Concern about the effectiveness of formal responses to juvenile offenses was clearly reflected in recommendations made by the 1967 President’s Commission on Law Enforcement and the Administration of Justice. These recommendations, formulated for the purpose of improving juvenile justice practice, served as a catalyst for the development of diversion programs during the late 1960s and 1970s. According to the commission:

The formal sanctioning system and pronouncement of delinquency should be used only as a last resort. In place of the formal system, dispositional alternatives to adjudication must be developed for dealing with juveniles, including agencies to provide and coordinate services and procedures to achieve necessary control without unnecessary stigma . . . . The range of conduct for which court intervention is authorized should be narrowed, with greater emphasis upon consensual and informal means of meeting the problems of difficult children.8

FYi juvenile institutiOns anD juvenile COurts Were CreateD tO Divert ChilDren FrOm the aDult Criminal justiCe sYstem

the creation of specialized juvenile correctional institutions and juvenile courts was based on the recognized need to respond to children and adults differently. It is the height of irony that today, in legislatures across the country, the age for the transfer of juvenile cases to adult courts is being lowered and the automatic waiver to adult courts for certain offenses is becoming law. Nowadays, more and more children are being “diverted” to the adult system—a system that is not particularly effective in dealing with many adults and is hardly capable of meeting the needs of youths.

In order to facilitate the number of diversionary responses available to communities, the commission called for the establishment of youth services bureaus. These bureaus were intended to supplement existing community agencies that dealt with children and to coordinate programs and services for both delinquent and nondelinquent youths. They also were intended to serve as an alternative to juvenile court processing, allowing, it was hoped, substantial numbers of youths to be diverted from the formal juvenile justice process each year.9 Through federal grants, primarily from the Law Enforcement Assistance Administration (LEAA) and the Office of Youth Development and Delinquency Prevention, and smaller matching grants provided by local and state governments, youth services bureaus were established in communi- ties around the country.10 Typically, youth services bureaus had five basic goals:

1. Divert juveniles from the formal juvenile justice system. 2. Fill gaps in service by advocating for youths and developing services for youths and their

families. 3. Provide case coordination and program coordination.

youth services bureau An agency that provides counseling, tutoring, mentoring, advocacy, and job referrals for youths in order to keep them out of the for- mal juvenile justice process.

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4. Modify youth services systems so that they better meet youths’ needs. 5. Involve youths in the decision-making process.11

Evaluation studies found that the typical youth services bureau was staffed by five or six full-time staff members and from 1 to 50 volunteers. Types of services offered included tutoring; recreational programming; individual, group, and family counseling; and job refer- ral. The typical bureau operated in a low socioeconomic status urban neighborhood where there were high rates of crime and unemployment and limited resources for youths. Each year, the typical bureau served approximately 350 youths who were self-referred or referred by the police, schools, and parents, among other sources.12

Although youth services bureaus were popular in a number of jurisdictions, they experi- enced some problems. One difficult issue they faced was the question of voluntary participa- tion. The ideal was to provide services to youths and possibly their families on a voluntary basis. However, if a youth or a family member failed to follow through on treatment plans developed by a bureau, a referral to the appropriate juvenile court was often made, even if the youth avoided further delinquent behavior. In addition, if a bureau determined that a youth was not likely to benefit from its services, the youth could be referred back to the original referral source.13 Such practices, of course, could result in formal processing—hardly what diversion programs are designed to accomplish. In addition to funding youth services bureaus, LEAA helped fund a variety of other diversion programs in communities around the country. These programs included “alternative schools, job development and training programs, police social work programs, and family counseling programs for youths referred by the police, schools, and court intake personnel.”14

In the late 1970s, however, LEAA began to alter its priorities and shift funds away from prevention and diversion programs and into law enforcement and rehabilitation programs. The initial LEAA funding for the youth services bureaus was intended to be seed money to help establish the programs, but after a certain period, usually two years, communities were expected to continue funding these programs on their own. In some cases, communities did assume full support of local youth services bureaus, but by 1982, a number of bureaus developed, at least in part, with LEAA seed money were discontinued due to a lack of funds.15 Nevertheless, a perceived need for diversion programs continued to motivate the development of such programs in communities around the country.

■ the theoretical Foundation of Diversion

Like other programs for youths, diversion programs are supported by beliefs and theoretical concepts. As noted earlier, for a long time many law enforcement officials, juvenile justice reformers, and students of crime and punishment have doubted the reformative potential of adult courts, jails, and prisons and have sought to spare youths from criminal processing. Questions regarding the value of criminal processing for juveniles were heightened during the political and social unrest that characterized much of the 1960s and 1970s. In addition, a well-developed theoretical rationale for diversion became popular during this time. These two factors, questions about the value of formal processing for many youths and a theoretical rationale for diverting youths, helped spur the development of diversion programs beginning in the late 1960s and early 1970s.

■ the social Context of the 1960s and the popularization of Diversion

The 1960s and early 1970s proved to be a fruitful period for the development and prolifera- tion of diversionary responses to juvenile offenders. For one thing, this period was marked by considerable social unrest, and a substantial portion of the protests that occurred were initiated and led by youths. Furthermore, many Americans, both young and old, seriously

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questioned the operation of basic institutions, including criminal and juvenile justice agencies. In addition, there was a marked increase in the juvenile arrest rates during this time. Not only were increasing numbers of young persons being arrested and processed by juvenile courts for violent and property offenses, but more youths were being arrested and processed for status offenses as well. Indeed, according to the President’s Commission on Law Enforcement and the Administration of Justice, more than 25% of the youths in juvenile courts and institutions were status offenders.16

It was also during the 1960s and 1970s that the societal reaction perspective, or what is sometimes referred to as labeling theory, began to play a more important role in criminological thinking.17 This perspective focused on three interrelated topics: “(1) the historical develop- ment of deviant labels, (2) the process by which labels are applied, and (3) the consequences of being labeled.”18

The first topic encompasses two subtopics: how deviant categories, such as delinquent, are produced, and how social control mechanisms, such as the juvenile court, are established. A good example of a work focused on this topic is Anthony Platt’s classic book The Child Sav- ers, which examines the “invention of delinquency” and the development of the first juvenile court in Chicago in 1899, a court that was primarily designed to control problem youths.19

The second topic includes the way in which control agents apply deviant labels to others and the factors that influence an individual’s efforts to resist or accept these labels.20 Societal reaction researchers in the field of juvenile justice might examine how police, judges, prosecu- tors, probation officers, and other control agents attempt to apply labels such as “delinquent,” “status offender,” and “chronic offender” to youths. In addition, they might explore a range of factors—such as youths’ perceptions of themselves, family influences, peer reactions, and interactions between youths and others—that tend to reinforce a deviant label or help youths resist such a label.

The topic that has received the most attention in juvenile justice circles is the third—the consequences of being labeled. According to societal reaction or labeling theorists, labels such as “delinquent,” “chronic offender,” “thief,” “doper,” and the like can have a variety of negative consequences for those who are given such labels. For example, a label that is attached to a person can lead others to assume things about the person that may not be true. A youth who has gotten into trouble in the past and has been labeled as a delinquent may be incorrectly treated as untrustworthy or may be treated more punitively as a result of being labeled. Indeed, the perceptions that social control agents have of others appear to play an important role in how youths are treated. If, through being labeled, youths are believed to possess undesirable characteristics associated in the public mind with criminality or potential criminality, they are more likely to be formally processed by police and other control agents and to be avoided by law-abiding individuals.

Another problem noted by societal reaction theorists is that youths saddled with a negative label often have fewer opportunities for involvement in normal law-abiding activities. Without such opportunities, they are more likely to associate with those in similar circumstances, thus increasing the likelihood of further deviance.21 Furthermore, responding to youths as if they were a lesser form of human being may lead youths to see themselves in a more negative light.22

In an interesting study, Charles Frazier described the case of a young man named Ken, who was tried and “branded” a criminal in a small town. Frazier noted that labeling Ken as a criminal led his former friends and associates to see him differently. Rejected by his former friends, Ken had fewer opportunities for engaging in conventional activities and began to see himself as a criminal.23 According to societal reaction theorists, being treated as different and being denied opportunities to associate with law-abiding persons may cause an individual to adopt a delinquent or criminal identity that becomes a master status—one that becomes the person’s primary public identity and that overrides other statuses the individual may enjoy.24

societal reaction perspective The point of view according to which social responses, particularly formal social responses, can contribute to subsequent delin- quent behavior. This perspective favors the diversion and deinstitutionaliza- tion of juvenile offenders when possible and ques- tions the wisdom of responding through formal means to each act of youth misbehavior (e.g., by arresting and trying the offender).

labeling The process by which a derogatory or otherwise nega- tive term comes to be associated with a person. Being labeled with a term like delinquent or chronic offender may cause a person to develop negative self-perceptions and cause others to respond to the person based on the label. Furthermore, labeling can limit the opportunities avail- able to the person and can lead him or her to develop a deviant identity, increasing the likeli- hood of subsequent offending.

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A critical issue raised by societal reaction theorists is whether responses to deviant behav- ior, such as delinquency, can increase the likelihood of additional deviance. This possibility was spelled out by sociologist Edwin Lemert in 1951, when he distinguished between primary and secondary deviance. According to Lemert:

Primary deviance is assumed to arise in a wide variety of social, cultural, and psychological contexts, and at best has only marginal implications for the psychic structure of the individual. As a result, primary deviance does not lead the individual to see themselves in a fundamentally different way. However, repeated reactions to the individual’s behavior can result in a process where changes in the individual’s identity and social roles can occur and this can produce what Lemert called secondary deviance. Secondary deviation is deviant behavior, or social roles based upon it, which becomes a means of defense, attack, or adaptation to overt and covert problems created by the societal reaction to primary deviation. In effect, the original “causes” of the deviation recede and give way to the central importance of the disapproving, degradational, and isolating reactions of society.25

■ the policy implications of societal reaction theory

Societal reaction theory has had a profound effect on social policy.26 Yet its policy implica- tions are rather different from those of other theoretical approaches. In contrast to those who argue that punishment of some sort needs to be imposed in order to deter youths from further delinquent activity, societal reaction theorists call for minimal or no intervention whenever possible in order to avoid the negative consequences of labeling. For example, Edwin Lemert made a case for the use of “judicious non-intervention,”27 arguing that much delinquent behav- ior is normal. Similarly, sociologist Edwin Schur argued for a policy of radical nonintervention (i.e., leaving children alone whenever possible) in order to avoid the negative consequences associated with involvement in the juvenile justice process.28

Societal reaction theory had an important influence on those who looked critically at the juvenile justice process in the 1960s and 1970s. In addition to serving as the theoretical rationale for diversion, it played a significant role in the development of three other juvenile justice reforms implemented during this period: decriminalization, increased emphasis on due process, and deinstitutionalization. Each of these reforms stressed keeping juveniles out of the formal juvenile justice process whenever possible.29

Decriminalization

Advocates of the societal reaction perspective pointed out that the criminalization of some behaviors often produces more harm than good. For example, behaviors like running away from home and not going to school are undesirable in many instances, but treating them as crimes does not necessarily benefit the youths who engage in them. On the contrary, treating truants and runaways as offenders may actually have a number of undesirable consequences. In addition, formal responses to status offenses, according to critics, were expensive and inef- fective. As a result, societal reaction theorists favored the decriminalization (i.e., redefining status offenses as social problems to be dealt with by welfare agencies as opposed to criminal actions to be handled by juvenile courts) of status offenses, and this policy was adopted in a number of jurisdictions around the country.

COmparative FOCus

today, in countries like Sweden and Finland all behaviors of youths under 15 years of age, including behaviors that would be criminal if committed by an adult, are treated as social welfare issues, not as crimes.

radical nonintervention

The strategy of not intervening with

youths who violate the law (i.e., not

placing them in the juvenile justice pro-

cess) if possible.

decriminalization The act of redefin- ing status offenses as social problems to be dealt with by welfare agencies as opposed to crimi-

nal actions to be handled by juvenile

courts.

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increased emphasis on Due process

Societal reaction theorists also were wary of the discretionary powers available to juvenile justice officials, including police and judges. Many of these theorists claimed that juvenile justice officials often abused their authority and acted in ways that were harmful to those under their care. As a solution, Edwin Schur argued for “a return to the rule of law.”30 According to this approach, constitutional safeguards should be extended to youths to protect them from the power of the state. Moreover, punishments should be spelled out in law and should be determinate, preventing capricious actions on the part of officials inclined to extend punish- ments indefinitely.

Societal reaction theory has been cited as an important contributor to the movement to extend due process protections to juveniles. Today juveniles enjoy more due process protec- tions than they did before the mid-1960s, but the extent to which the juvenile justice process has become more humane in its treatment of youths is not clear.31 Simply extending legal protections to youths does not mean that those protections will be implemented in practice, and there is considerable evidence that the extension of due process protections to juveniles has had less of an effect on juvenile court proceedings than some have claimed.32

Deinstitutionalization

Another reform supported by those influenced by the societal reaction perspective was deinstitutionalization—the removal of juveniles from correctional facilities. Like diversion, deinstitutionalization was intended to protect youths from the harmful effects of incarceration. Indeed, criminologists from diverse theoretical positions argued that the reform of delinquents required efforts to “improve attachments to family and school, increase academic skills, open up legitimate opportunities, and reduce association with delinquent peers.”33 The incarceration of youths accomplishes none of these objectives. As the President’s Commission stated in its 1967 report, The Challenge of Crime in a Free Society, “Institutions tend to isolate offenders from society, both physically and psychologically, cutting them off from schools, jobs, families, and other supportive influences and increasing the probability that the label of criminal will be indelibly impressed upon them.”34

A number of states, including Massachusetts, Maryland, Missouri, North Dakota, South Dakota, Oregon, and Utah, have made efforts to implement community-based correctional strategies,35 and others have articulated the importance of community-based programs. The most ambitious of these efforts was led by Jerome Miller, Commissioner of the Department of Youth Services in Massachusetts during the 1970s. Under Miller’s direction, Massachusetts dramatically reduced its institutional population by closing training schools and placing youths in community-based programs.36 In addition, a number of states have made considerable progress in removing status offenders from correctional facilities.37

■ Other rationales for Diversion programs

One argument offered in support of diversion is that it can reduce the stigma and other nega- tive consequences of being arrested for delinquent behavior and thus reduce the probability of recidivism. Other supporting reasons and arguments also have been advanced. For example, diversion programs are believed to allow some youths to receive assistance who would not oth- erwise be helped, because juvenile corrections programs often fail to provide needed services to youths. Advocates also point out that diversion programs allow juvenile justice decision makers to use discretion and be more flexible than many courts in responding to youths.38 Another reason people favor diversion is that it reduces the burden placed on juvenile court

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resources by decreasing the number of youths referred to the courts. Furthermore, diversion programs promise the added benefit of freeing up scarce resources, which could then be devoted to dealing with more serious offenders.39

A final argument offered in support of diversion is based on the fact that many youths who engage in delinquent behavior are not identified and punished, and they cease offend- ing without formal intervention. This fact suggests that formal intervention is, in many cases, unnecessary. Given the potential negative consequences of formal processing (according to societal reaction theorists), subjecting youths to formal processing can cause them great harm (and the community great harm, to the extent that these youths are encouraged to engage in further delinquency).

mYth vs realitY punishment is nOt alWaYs neeDeD tO COrreCt YOuths

Myth—If youths are not punished for their delinquent behavior, they not only will continue to engage in illegal behavior, but also will engage in more serious types of delinquency. reality—although self-report studies indicate that most youths engage in at least minor types of delinquent behavior,40 most youths are not apprehended and processed by formal juvenile justice agencies.41 Despite this, most of these youths will not commit serious offenses or live lives of crime when they become adults.42

FYi

apart from the theoretical arguments presented by societal reaction theorists suggesting the potential harm that can be done to youth as a result of involvement in the juvenile justice process, a number of studies and court cases exist that document these harms.

■ the spread of Diversion programs since the 1960s

As already noted, a number of diversion programs have been developed since the late 1960s. Among the most popular have been Scared Straight programs; family crisis intervention pro- grams for status offenders; limited individual, family, and group counseling programs for status and criminal offenders; runaway shelters; individual and family counseling programs coupled with educational, employment, and recreational services; basic casework and counseling pro- grams; dispute resolution programs involving restitution and community service; and more recently, teen court, truancy court, and restorative justice programs. Unfortunately, many of these programs have not been carefully evaluated, and their effectiveness is thus unknown. The following sections examine some of the programs that have been evaluated.

scared straight or Deterrence-based programs

Scared Straight programs, developed in the 1970s, were popularized by several films about the Juvenile awareness project, which began in September 1976 at Rahway State Prison in New Jersey, a maximum-security institution, and a more recent television series on the A&E net- work, Beyond Scared Straight. The first film, Scared Straight!, received considerable publicity and presented testimonial evidence that suggested the program was a tremendous success. Indeed, the film won both an Emmy and an Academy Award; it was shown to countless youth groups and school classes, and it aired on national television in 1979. The second and third films, essentially 10-year and 20-year follow-ups of the initial documentary, made similar claims regarding the effectiveness of the Juvenile Awareness Project.

Juvenile awareness project

A program in which long-term prison

inmates meet with juveniles in counsel-

ing, educational, or confrontational

sessions for the pur- pose of exposing the

youths to the harsh realities of prison

life. Scared Straight is an example of this

type of program.

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In California, “scaring kids straight” became so popular that legislation was introduced that required the busing of 15,000 juveniles to state prisons for confrontation sessions similar to those at Rahway. In many other communities, tours of prisons and jails and confrontations with inmates were arranged in order to scare youths straight.43

The Juvenile Awareness Project was developed by a group of inmates called “lifers” who were serving long prison terms at Rahway. The goal of the lifers was to expose youths to the harsh realities of prison life. In order to accomplish their goal, the lifers did more than just describe conditions in Rahway. The basic intervention employed consisted of a confronta- tion in which verbal and, at times, physical abuse and verbal and physical intimidation were used to convey the brutality and human indignities characteristic of life in a prison such as Rahway. The inmates, who developed the program, believed that making youths understand where the consequences of their delinquent behavior might lead would act as a deterrent to subsequent delinquency.

Although the Scared Straight! films and the A&E series claim that these programs are suc- cessful, an evaluation of the Juvenile Awareness Project at Rahway by James Finckenauer was far less encouraging.44 Finckenauer found that the youths who typically attended the Juvenile Awareness Project at Rahway were less delinquent than the films suggested. More disturbing, his research indicated that youths who went through the Rahway Project were more likely to engage in subsequent delinquency than youths who had not attended the program.45 There were, however, some problems with Finckenauer’s evaluation. The evaluation design had called for the random assignment of youths to the experimental condition (the Rahway program) or to a control condition (no treatment). However, some of the agencies that selected youths did not select them on a completely random basis. Consequently, it is possible that the two groups may not be comparable. Even so, evaluations of programs similar to the Rahway program have produced results much like those reported by Finckenauer.

In a review of the evaluations of two other programs designed to scare youths straight, Richard Lundman found no evidence that those programs were effective.46 In one program that was similar to the program at Rahway because it used a confrontational style of interac- tion between youths and inmates, Lundman found no differences between experimental and control subjects over a six-month follow-up period. In the other program, which consisted of a tour of the facility and meetings between inmates and youths, he found that youths who went through the program were more likely to engage in subsequent delinquency than youths in a control group (who did not participate in the program). This finding mirrors that of the most extensive examination of these types of programs to date. This research, conducted by Anthony Petrosino, Carolyn Turpin-Petrosino, and John Buehler, consisted of an extensive review of the existing literature on programs like Scared Straight as well as a meta-analysis (a data analysis technique that makes possible the examination of treatment effects across different studies) of the existing literature. This research, as well as a meta-analysis conducted by James Finckenauer and Patricia Gavin, concluded that these programs are ineffective.47 In discussing the results of their research on juvenile awareness programs, Petrosino and his colleagues noted the following results:

These randomized trials, conducted over a 25-year period in eight different jurisdictions, provide evidence that “Scared Straight” and other “juvenile awareness” programs are not effective as a stand-alone crime prevention strategy. More importantly, they provide empirical evidence—under experimental conditions—that these programs likely increase the odds that children exposed to them will commit offenses in the future. Despite the variability in the type of intervention used, ranging from harsh, confrontational interactions to tours of the facility converge on the same result: an increase in criminality in the experimental group when compared to a no-treatment control. Doing nothing would have been better than exposing juveniles to the program.48

deterrent Refers to actions taken to influence a person’s behavior by imposing or threat- ening to impose a legal sanction such as probation, incar- ceration, a fine, etc.

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mYth vs realitY evaluatiOns OF sCareD straight prOgrams Fail tO prODuCe pOsitive results

Myth—after youths understand what prison is like, they will think twice about committing delinquent acts. reality—evaluations of Scared Straight programs fail to demonstrate that these programs are effective.49

COmparative FOCus

scared straight in norway

a program based on the Juvenile awareness program at rahway was started at Ullersmo prison in the early 1990s as part of an effort by child welfare agencies and the police. however, the program was abandoned in the late 1990s because it was attacked on ethical grounds that it exposed youths to inhumane treatment and because there was no scientific evidence that it was effective.50

Family Crisis intervention programs

Another type of diversion program involves providing crisis intervention services to children and families in hopes of preventing subsequent problems and formal court involvement. A good example of this type of diversion program was developed in Sacramento, California, in 1969. This program, known as the Sacramento 601 Diversion Project, was intended to divert status offenders from detention and formal court processing by having specially trained probation officers provide short-term crisis intervention and treatment services to the youths and their families.51

This program focused on status offenders who were referred to the juvenile court by police, parents, and school officials. The youths referred to this program were typically white, poor, female, and younger than 15 years of age. Also, three-quarters of the referred youths had no previous contact with the court. The usual reason for referral was the existence of fam- ily problems.52 When a youth was referred to the court, a specially trained probation officer would contact the youth’s parents and request that the parents and youth come to Juvenile Hall for an immediate counseling session. When they arrived at Juvenile Hall, the probation officer would read the Miranda warning and explain that participation was voluntary. The officer indicated, however, that if they did not wish to participate in an immediate counseling session, their case would be referred to the court. The youth and parents were also told that if they agreed to participate in a counseling session, they could return for a limited number of sessions (the limit was five) if they chose to do so. Most parents and their children agreed to participate.53 After a juvenile waived his or her rights, a counseling session began in which the probation officer used family intervention techniques. Essentially, these techniques were intended to get the family to look at the problem as a family problem that should be addressed by the entire family rather than by incarcerating the youth.54

An evaluation of the Sacramento 601 Diversion program, which employed an experimental design, indicated that it produced some promising results. Only about 14% of those youths handled by the specially trained project probation officers were detained, and only about 4% were petitioned to the court. In comparison, of the youths handled by regular probation officers, 55% were detained and about 20% were petitioned to court.55

In addition, the program evaluation found that the project reduced recidivism. A follow-up study of youths 12 months after their involvement in the program found that 46% of those who received the specialized diversion services had another court referral, and 22% were referred

experimental design Research design in which subjects are

randomly assigned to experimental and

control groups.

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to the court for a criminal offense. In comparison, 54% of those handled by regular probation officers were subsequently referred, and about 30% were referred for a criminal offense.56

Diversion programs that employ individual, Family, and group Counseling services

Given the apparent success of the Sacramento County 601 Diversion Project, 11 other juris- dictions in California developed similar programs and began to conduct evaluations of those projects in the mid-1970s. These projects were developed in Compton, El Centro, Fremont, Irvine, La Colonia, Mendocino, Simi Valley, Stockton, Vacaville, and Vallejo. They were similar to the Sacramento 601 Diversion Program in a number of ways. For example, they substituted short-term family and individual counseling for detention and referral to juvenile court.57

There were, however, important differences between these projects and the Sacramento project. For example, more of the youths involved in these projects were male, Hispanic, and African American, and a number were diverted after committing criminal offenses. In these projects, juveniles were referred by either the police or by probation officers. Youths received individual, family, and group counseling for four to six weeks on average, and the counseling included nearly six hours of contact services.58

The evaluators of these projects employed a quasi-experimental design. That is, they did not use random assignment of youth to experimental and control conditions, but rather attempted to approximate equivalence of the groups by comparing youths serviced by the diversion pro- grams with youths who had similar race, age, sex, ethnicity, prior arrest, and referral source characteristics but were not serviced by the programs. Arrests of the individuals in the two groups were then compared six months after the arrest that brought them to the attention of the authorities.59

A comparison of the two groups revealed that youths serviced by the diversion programs were arrested slightly less often during the six-month follow-up period than youths in the other group (about 25% compared with about 31%).60 These results suggest that diversion programs may produce modest reductions in recidivism. The researchers also found that diversion seems to have some benefits for males and females and for both criminal and status offenders.

Diversion programs that employ individual and Family Counseling in Conjunction with employment, educational, and recreational services

As the number of diversion programs increased in the United States, researchers raised ques- tions about their effectiveness. Among other things, they looked at the types of evaluations that had been done. In most instances, the diversion research in California was based on quasi- experimental designs. Consequently, it was difficult to tell if it was the programs themselves that had reduced recidivism or some unknown factor. Furthermore, it was unclear if diversion could be used effectively with criminal offenders, although there was some indication that it could. Finally, none of the evaluations of diversion programs had employed a “no treatment” group. Consequently, it was difficult to determine what the benefits of diversion programs were compared with doing nothing—a radical nonintervention approach.61 In response to these concerns and others, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) made $10 million available for the National Evaluation of Diversion Programs in the 1970s. As a result, four jurisdictions—Kansas City, Missouri; Memphis, Tennessee; Orange County, Florida; and New York City—developed experimental diversion projects. Each project excluded status offenders and included radical nonintervention as one of the experimental conditions. Experimental conditions consisted of (1) assigning youths to the diversion project, (2) doing

quasi-experimental design Research designs that can be used to explore possible cause-and-effect relationships when true experimental designs are not pos- sible. What distin- guishes these designs from experimental designs is that they do not involve ran- dom assignment of subjects to experi- mental and control groups.

iodrag Gajic/iStockphoto

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nothing, and (3) referring the youths back to the original referral source for normal handling. This meant that some, but not all, of these youths penetrated the juvenile justice system.62

Diverted juveniles in each of the four projects received individual and family counseling, and edu- cational services were available to youths. However, each of the projects tended to emphasize different services. For example, in Orange County, recreational services were emphasized, whereas in Kansas City, some diverted juveniles were assigned adult coun- selors who acted as advocates in dealings with public agencies and organizations, such as schools.63

An evaluation of these projects indicated that there was no difference in re-arrests among the three groups 6 and 12 months following the intervention. At the 6-month point, 22% of the youths who had been enrolled in a diversion program, 22% of those released (radical nonintervention), and 22% of those handled in the usual way had experienced at least one re-arrest. After 12 months, 31% of those diverted, 30% of those released, and 32% of those handled in the usual way had experienced at least one re-arrest.64 The finding of “no difference” in the outcomes of the different types of diversion is important for at least two reasons: It suggests that youth law violators may benefit from diver- sion, and it suggests that doing less may be just as effective as doing more—that placement in the juvenile justice process may not be the best way of dealing with some juvenile offenders.

programs that use basic Counseling and Casework services

Other diversion programs provide basic counseling and casework services to youths. One example is the Adolescent Diversion Project in Michigan, evaluated between 1976 and 1981. The subjects involved in this project consisted of both status and criminal offenders, but youths charged with Crime Index offenses against persons and youths already on probation were not included. The two most common offenses committed by the subjects were larceny-theft (34%) and breaking and entering (24%). The average age of the subjects was 14 years, 84% of the subjects were male, and slightly less than 30% were African American or Hispanic.65 The longer of the two studies of the Adolescent Diversion Project began in 1976 and lasted until 1981. It examined the effectiveness of six different interventions provided by university students working for a course grade. Each student received specialized training in the type of intervention to which he or she had been assigned, and each worked with clients for 6 to 8 hours a week for 18 weeks. The students were monitored and evaluated by graduate students, by their clients, and by the professors responsible for the study. The interventions included family-focused behavioral contracting and client advocacy for youths provided by trained students; behavioral contracting and client advocacy for youths provided by trained students and a juvenile court employee; individually tailored client interventions designed by students given minimal training; relationship building led by specially trained university students; and standard court processing.66

A second study, which began in 1979 and lasted until 1981, investigated diversion interven- tions consisting of behavioral interventions and child advocacy. As in the other study, some youths were returned to the referral source for normal processing. However, the types of people who provided the services expanded to include graduate students and community volunteers. Again, each service provider was trained to provide diversion services to one client, each spent 6 to 8 hours a week with the client, and each was carefully monitored and evaluated.67

The two studies of the Adolescent Diversion Project indicate that a number of the inter- ventions appear to have been effective in reducing subsequent delinquent activity, at least when compared with normal court processing. The interventions that were the most effec- tive were those that provided behavioral contracting and child advocacy services and those that focused on relationship building. Particularly effective were those interventions led by

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community volunteers. The least effective involved the provision of behavioral contracting and child advocacy services by students and a juvenile court employee and standard court processing. These findings support the view of societal reaction theorists, who claim that formal intervention can have a negative effect on youths.68

Another type of program that has received attention in recent years is mentoring pro- grams. Clearly, the most well known of these programs is the Big Brothers Big Sisters pro- gram. Importantly, this program, which involves carefully chosen matches between a mentor (Big Brother or Big Sister) and a youth, has been found to be an effective intervention for many youths. A study of Big Brothers Big Sisters in the early 1990s found that children who were matched with a Big Brother or Big Sister were less likely to begin using illegal drugs or alcohol, skip school or class, or hit someone. Also, the mentored children were more confident of their performance in schoolwork and showed improved family interaction compared with children who were not matched.69 Moreover, a meta-analysis of various treatment programs for juvenile offenders conducted by Mark Lipsey found that mentoring programs, in general, reduced recidivism by 21%.70

Although there is evidence that mentoring programs can be effective, other studies have produced negative results. One well-documented early study, the Cambridge-Somerville Youth Study, used adult counselors who met with randomly selected at-risk youths and their families approximately once a month and with other social agencies over a two-year period to guide the youths in ways that lessened the likelihood they would engage in delinquency. The adult counselors provided a range of services to the youths and their families that included arranging physical exams, working on family relations, locating employment for youths and family members, tutoring youths, having youths assessed for reading disabilities and arranging for corrective action, obtaining legal advice for the family, arranging psychiatric services for youths and family members, advocating with teachers, and teaching youth hobbies, among other services. However, an evaluation showed that youths who received services were just as likely to engage in delinquency as youths who did not receive program services. In fact, program youths committed more offenses than youths who did not receive services.71 Simi- larly, in a review of evaluations of various mentoring programs for youths, Devon Brewer, J. David Hawkins, Richard Catalano, and Holly Neckerman failed to find positive effects for many of the programs.72 Although not all of the programs evaluated could be considered diversion programs, these studies demonstrate the diversity of mentoring programs that exist and make evident the need for continuing research to better understand the characteristics of effective programs.

■ Contemporary Diversion strategies and programs

Today, as in the past, diversion is frequently used in juvenile justice. Also as in the past, diver- sion strategies are of two basic types: radical nonintervention and involvement in a diversion program. A police policy that entails the warning and release of some juvenile offenders is an example of radical nonintervention. A policy that encourages police officers to refer youths (and possibly their parents) to a diversion program is an example of the second type of strategy.

Contemporary diversion programs are operated by various types of juvenile justice and community agencies. Many communities have diversion programs operated by the local juvenile court or probation agency, others have diversion programs run by the police depart- ment, and still others have diversion programs operated by separate public or private agen- cies. Whether operated by juvenile justice or community agencies, diversion programs may employ a variety of interventions intended to reduce the continued involvement of youths in delinquency. The interventions include providing basic casework services to youths; truancy courts; crisis intervention to assist youths and their families; individual, family, and group counseling; conflict resolution; mentoring; participation in restitution and community service

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programs; and teen courts, among others. Following are three examples of more contemporary diversion programs that have received some attention in the evaluation literature.

Youth enhancement services (Yes)

Youth Enhancement Services (YES) was intended to provide a variety of services to primarily minority youths in Daupin County, Pennsylvania (Harrisburg), who were felt to be at risk of delinquency, as well as those who had contact with the police. Its major goals were to improve school performance and behavior, and reduce rates of arrest and recidivism among minority youths. Program referrals came from a variety of community sources, including the police, and services were provided to clients by a range of community agencies, including Girls Inc., the Boys Club, and the YMCA. These services consisted of some combination of client needs assessments, mentoring and adult support, peer group discussions, family support services, neighborhood and community projects, educational assistance, and job readiness training.73

An evaluation of YES compared outcomes for youths who were referred to the program but chose not to participate (44% of the youths referred to the program), those who participated and received less than 30 hours of service over the course of a year (24% of referrals), and those who received at least 30 hours of service (32% of the referrals). As might be expected, youths who received more than 30 hours of service had characteristics that were likely to increase the odds of program success. They were less likely than other youths to have a prior arrest, to be a self-referral, or to be referred by their family, and on average they did better in school. The evaluation revealed no significant differences among the three groups on school performance or behavior. The program did, however, appear to reduce minority youths’ likelihood of con- tact with the police. Over a two-year follow-up period, 50.6% of those who were referred to the program but did not participate had at least one new arrest, compared with 41.3% in the low-attendance group and 25.8% in the high-attendance group.74

teen Courts

Another type of diversion program that has grown in popularity in recent years is teen court. A distinguishing feature of these courts is that juveniles, under the guidance of adults, play important roles in case processing and determining the types of dispositions used. Typically, these courts handle relatively young offenders with no prior arrests, and in most instances

they deal primarily with cases involving theft, minor assaults, disorderly conduct, possession and use of alcohol, and vandalism.75

Advocates of teen court programs maintain that these programs make use of youths’ desire to be accepted by their peers to encourage them to take responsibility for their behavior and engage in more socially acceptable behavior in the future. Moreover, supporters argue that not only does teen court help youths who are the defendants in cases, but also those youths who staff the court and the community as a whole. By involving a number of youths and adults in the teen court process, advocates believe that teen courts engender greater community involvement in the legal system, encour- age community cohesion, promote law-abiding behavior, and do all of this in a cost-effective manner.76

At present, four basic teen court models are found around the country:

• Adult judge. An adult judge presides over the court and oversees court operations. Youths act as attorneys, jurors, clerks, bailiffs, and other court officers and staff. This is the most popular model around the country.

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• Youth judge. The format is similar to the previous model, but a youth serves as the judge. • Tribunal. Youth attorneys present their cases to a panel of three youth judges who deter-

mine the appropriate disposition. A jury composed of youths is not used in this model. • Peer jury. This model does not use youth attorneys. Instead, the case is presented to the

peer jury by a youth or an adult. In this model, the peer jury questions the defendant directly.77

Because the growth in teen courts is relatively recent, there is not yet an extensive body of research documenting their effectiveness. Some program evaluations have reported recidivism rates of 3% to 8% between 6 and 12 months after program completion. In addition, there is good evidence that at least some of these programs produce improved perceptions of authority, justice, and the legal system. Other studies, however, have reported recidivism rates of 24% to 32%.78 A more recent evaluation of teen courts in Alaska, Arizona, Maryland, and Missouri found that youths in two of the four sites displayed significantly lower rates of recidivism compared with youths who did not go through the program.79 To date, the research indicates that some, but not all, of these programs appear to have a positive effect on youths’ behavior. Moreover, there is some indication that some programs may lead to negative labeling of some youths, particularly minority youths, and net-widening (i.e., intervening with youths who would otherwise be left alone if not for the program).80 Until more comprehensive studies of these programs are completed, however, more definitive statements about the viability of teen court programs are premature.

restorative justice/Conflict resolution/mediation programs

Restorative justice programs consist of a variety of interventions designed to mediate or resolve conflicts between juvenile offenders and their victims. Proponents of restorative justice argue that simply focusing on punishment of the offender hinders efforts to achieve justice. In contrast to present efforts that focus solely on the offender, restorative justice is concerned with achiev- ing justice for both the offender and the victim. As a result, these programs are intended to provide rehabilitative services to offenders and to deliver some therapeutic benefit for victims. Moreover, they are believed to be cost effective, and the focus on offender accountability and victim restitution and/or community service is appealing to the public.

One type of restorative justice program that is designed to divert youths from the formal juvenile justice process is restorative justice conferencing. In a restorative justice conference, the youth who committed the offense, the victim, and supporters of the offender and victim meet with a trained facilitator to discuss the offense and examine the harm it caused. Supporters have an opportunity to discuss how they have been affected by the offense, and at the conclusion of the conference, a written agreement is completed specifying how the offender can make amends to those who have been harmed by the incident. Typically, the agreement involves an apology and restitution to the victim, but it also can include other elements such as community service or requirements that youths improve their school performance or behavior at home.81

Although there is limited research on restorative justice conferencing with young offenders, research on programs using some form of restorative justice have produced generally favor- able results.82 One evaluation that employed an experimental design and looked at restorative justice conferencing for first-time young offenders (median age 13 years) who had committed nonserious offenses noted several positive outcomes. An analysis of interviews with victims revealed that those who participated in conferencing expressed much higher levels of satisfac- tion with the way their cases were handled compared with those in other diversion programs. Levels of satisfaction were similar for youths and parents involved in conferences and other types of diversion programs. Youths randomly assigned to participate in conferences compared with those assigned to other diversion programs, however, had significantly higher program completion rates than those in other diversion programs and significantly lower levels of rearrest 6 and 12 months after their initial arrest. These findings indicate that restorative

restorative justice A process designed to repair the harm done to the victim and the community that entails bring- ing the interested parties, such as the victim, offender, and a community representative, to a nonconfrontational setting where an agreeable resolution to the youth’s illegal behavior can be reached.

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justice conferencing is a promising approach for diverting young offenders from the formal justice process and can produce high levels of satisfaction among conference participants.83

A more recent evaluation of a restorative justice program in Maricopa County, Arizona, by Nancy Rodriguez also uncovered positive program effects. Rodriguez found that youths who participated in the restorative justice program were less likely to have a new petition filed with the juvenile court than comparison youths who participated in a probation department– designed diversion program during a two-year follow-up period. She also found that girls and youths with minor or no criminal histories appeared to benefit the most from the restorative justice intervention.84

COmparative FOCus

restorative justice has a long history and has played a major role in responding to Crime in many Cultures

according to criminologist John Braithwaite, “restorative justice has been the dominant model of criminal justice throughout most of human history for all the world’s peoples.”85 Indeed, for much of human history victims and people in communities were responsible for responding to violations of community norms and laws. Moreover, many of these traditions have continued and can be found in indigenous cultures, such as the Maori in New Zealand, aboriginal tribes in australia, the Inuits in alaska, and the First Nations tribes in canada.86

Another relatively new type of diversionary intervention is juvenile drug courts. Although these programs were originally developed as diversion programs,87 most of these programs are found at the post-adjudicatory stage of the juvenile justice process. Nevertheless, some programs are used as diversion programs. Typically, drug courts provide services to youths for nine months to a year by a court team consisting of the judge, prosecutor, defense attorney, treatment providers, and casework staff such as an intake or diversion worker. Also, programs generally require youths and their parents to sign an agreement accepting the goals of the program, which usually include the following:

• Provide immediate interventions, structure, and treatment supported by judicial monitoring

• Address problems; help youths improve behaviors and resist drugs • Enhance education skills, self-concept, and positive relationships • Assist families in providing structure and guidance for youths • Promote accountability by youths and service providers88

Although the number of juvenile drug courts has been growing over time, research on their effectiveness has been mixed. A recent meta-analysis of adult and juvenile drug courts indicated that juvenile courts had a smaller impact on recidivism than adult courts, although they were, in general, modestly effective. Moreover, there is some evidence that drug court participants who complete programs tend to be more successful.89

bOx 7-1 IntervIew: Deb bennett, east Central regIon supervIsor, Court DesIgnateD worker program (Intake), aDmInIstratIve offICe of the Courts, Commonwealth of kentuCky

Q: What is your educational and employment background? a: after working several years in pediatric nursing, working in hospital and private office settings, a change

in career paths led me to work with delinquent juveniles in the Kentucky court system and to further my education by taking classes in the field of criminal justice.

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■ the effectiveness of Diversion

Supporters of diversion strategies and programs maintain that such programs decrease the number of youths involved in the formal juvenile justice process, reduce offending among youths who receive diversionary treatment, minimize the stigma associated with formal intervention, are more cost effective than formal processing, reduce the level of coercion employed by juvenile justice agencies, and reduce minority overrepresentation in the formal juvenile justice process.90 As noted earlier, a number of evaluation studies of diversionary programs have found them to be superior to formal court processing in a number of respects,91 but some evaluation studies have found that some programs fall short of their goals. In fact, although some evaluation studies indicate that diversion programs can reduce recidivism or the programs are at least as effective as formal processing at reducing recidivism,92 other studies have found that some diversion programs are associated with higher levels of sub- sequent offending.93

In addition to possible increased recidivism, other problems have been found to plague some diversion programs. Although these programs are often touted as a way to reduce the number of youths involved in the juvenile justice process, some diversion strategies may actu- ally lead to net-widening.94 Indeed, research on diversion programs has found that some pro- grams increase the number of youths involved in the juvenile justice process by 33% to 49%.95

Besides reducing the number of youths involved in the formal juvenile justice process, another rationale for the development of diversion programs is the belief that such programs are less stigmatizing than formal court processing. However, there is some evidence that

net-widening Increasing the avail- ability of programs to handle youth offenders outside of the formal juvenile justice process, thereby causing youths who would otherwise have been left alone to be placed under the control of juvenile justice programs.

Q: What is your current position, and what are your responsibilities? a: I am the Field Supervisor for Family and Juvenile Services, court Designated Worker (cDW) program.

I supervise nine judicial districts (18 counties) in the east central region of Kentucky. the responsibilities of a cDW supervisor include staff time/travel approval; staff and program schedule development; staff performance evaluation; responding to staff problems; interviewing, hiring, and training new workers; preparation of statistical reports; program development; and establishing and maintaining community partnerships throughout the region. I addition, I am responsible for after-hours on-call coverage when youths get in trouble with the police, the completion of diversion assessments, the management of diversion cases, case reviews, responding to youths and families who are in crisis, and taking the appropriate actions when youths fail to complete diversion agreements.

Q: What agency do you work for, and who do you report to? a: I work for the administrative Office of the courts, Family and Juvenile Services, court Designated Worker

program. I report to three tiers of supervision: statewide operations supervisor, manager, and executive officer.

Q: What part of your job do you find the most rewarding? a: the cDW program, through diversion, gives many young people a second chance. When juveniles are charged

with a criminal offense, they are often given a negative label and become convinced that they are “bad” or “unworthy.” the most rewarding part of my job is seeing a young person avoid a formal court record and realize he or she has worth and value. It is so true that youths who have gotten into trouble are often simply looking for someone who is willing to invest time in them, listen, and exercise “tough love” when necessary.

Q: What are the most difficult problems you face in your efforts to address children’s needs? a: Budget cuts and the loss of program funding, at both state and federal levels, continuously become road-

blocks to obtaining the social service intervention families so desperately need.

Q: What skills and abilities should college students develop if they want to work as an intake officer? a: Knowledge and education are vital. But one must also have passion and perseverance, to keep going even

when you don’t see immediate progress or change taking place in the life of a young person.

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involvement in some diversionary programs can be as stigmatizing as involvement in formal court programs. In an evaluation of a teen court program, Rasmussen found evidence of negative labeling related to program involvement.96 Also, in another study that compared the self-concepts of incarcerated youths with those of youths in diversion programs found no significant differences between the two groups.97

The coercive nature of many diversion programs is another concern. In recommending diversion, the 1967 President’s Commission on Law Enforcement and the Administration of Justice called for voluntary diversion programs. However, in some jurisdictions, potential cli- ents are given no real choice.98 For example, juvenile offenders and their parents are often told that unless they agree to participate in a diversion program, the case will be referred for court action. Under such circumstances, most potential clients will feel compelled to participate. (Recall the choices given to youths and parents in the Sacramento 601 Diversion Program.)

Still another concern is the cost. As the cost of institutional placement and other formal responses has risen, diversion has been seen by many as a cost-effective alternative to formal processing. Moreover, there is clear evidence that post-adjudication interventions such as foster care, group home placement, and incarceration are expensive.99 However, research that has examined the costs associated with diversion indicates that, whereas some diversion programs are less expensive than many formal programs, others are actually more costly.100 Like other programs, diversion programs often require staff and support, which means that resources that might be devoted to other needs have to be allocated to diversion. Furthermore, if net-widening occurs, even though the per-client cost of diversion may be lower than the per-client cost of a formal program, the increased volume of cases can make the diversion program more expensive.

FYi

It is expensive to incarcerate youth. the cost of detaining a youth in a juvenile facility ranges from $24 to more than $700 per day per youth. the average cost is approximately $241 per day for each youth detained.101

Another concern is the possibility that diversion programs may deny youths due process.102 Diversion may be coercive and may consist of intrusive interventions, such as a requirement that a youth, and possibly the youth’s family, participate in counseling or some other type of treatment. Coercion is problematic at any level of the juvenile justice process, but it is par- ticularly problematic at the preadjudicatory stage of the juvenile justice process, where youths have not been proven guilty of an offense.

A final argument for diversion programs is their potential to reduce the overrepresenta- tion of minority youths in the formal juvenile justice process. Although this would be true in instances of radical nonintervention, diversion programs may actually contribute to the problem of disproportionate minority contact (DMc). For example, an evaluation of a teen court program found that black youths were more likely to be judged harshly by their peers than white youths, and this may have accounted for their higher rate of recidivism.103

In sum, the research on diversion has produced mixed results. A number of problems have been associated with diversion programs, but despite the problems associated with some programs, diversion appears to have some merit. As diversion programs are developed and implemented, however, problems that plague many diversion programs should be carefully considered and addressed, and diversion programs should be carefully evaluated after they are implemented to ensure that they are accomplishing their objectives.

due process Refers to the actions that are necessary at

each step of the juve- nile justice process

to ensure that youths are treated fairly and

that their rights are protected.

disproportionate minority contact

(DMc) Refers to the dif-

ference in the rate of contact between

minority youths and white youths

with each stage of the juvenile justice

process. If the rate of contact of minor-

ity youths is greater than that of white

youths, DMC exists.

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■ legal issues

Due process, which is intended to ensure that an individual receives certain protections against government intervention, in some ways conflicts with the idea of diversion. First, in many jurisdictions, eligibility for diversion may be decided by police officers who are unfamiliar with the proper criteria for diversion or how to apply them. Thus, they are ill equipped to make diversion referrals. As a result, some youths who commit the same offenses will be diverted and others will be arrested. Second, the availability of diversion programs may increase the likelihood that a youth will become formally involved with juvenile justice agencies as a result of net-widening. Third, if coercion is used to get youths to participate in diversion programs, they are being denied their rightful due process protections. Fourth, involvement by diver- sion staff in the lives of family members on a “voluntary” basis may be just as intrusive as if it were done by court order. Fifth, many diversion programs make referrals to the juvenile court when “clients” are felt to be uncooperative, which is another way these programs can be coercive and widen the net of court control.

CrItICal thInkIng QuestIon

What arguments could be made to support the use of radical nonintervention and diversion programs as an alternative to formal juvenile justice processing?

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Chapter summarY

This chapter examined diversion, which encompasses responses to juvenile offenders that are intended to avoid formal court processing. The use of diversion is typically motivated by the belief that formal responses to youths who have violated the law are expensive, do not always serve the best interests of youths or the community, and such responses often increase rather than decrease the likelihood of recidivism. Moreover, many people recognize that juvenile courts typically lack the resources to deal with every case of delinquency and that court intervention may ultimately harm a youth who becomes enmeshed in juvenile correctional programs, particularly juvenile institutions. Consequently, the immediate purpose of diversion is to minimize or avoid contact between youths and formal juvenile justice agencies, such as the police or the juvenile courts, particularly when youths have engaged in minor forms of delinquency.

Although diversion has a long history, it became more popular in the late 1960s and early 1970s. During this period, the rising level of juvenile crime, the willingness of many Americans to question the operation of basic American institutions, the popularization of societal reac- tion theory/labeling theory (which raised serious questions about the potential detrimental effects of formal processing), and recommendations of the 1967 President’s Commission on Law Enforcement and the Administration of Justice served as the impetus for the development of a range of diversionary responses to juvenile offenders.

Diversion currently encompasses a wide range of responses, from radical nonintervention to the referral of youths and possibly their parents to diversionary programs intended to reduce the chance of future delinquent behavior. Despite the widespread use of diversion, evaluations of diversion programs have produced mixed results. Although studies of a number of diversion programs have produced considerable support for the concept of diversion, particularly when it is compared with formal juvenile justice processing, research has also produced evidence that some diversion programs have little effect on recidivism. Indeed, some studies indicate that diversion programs may increase the likelihood of subsequent delinquent activity. In addition, some of the supposed benefits of diversion, such as cost efficiency, the lack of stigma associ- ated with these programs, and their ability to reduce disproportionate minority contact with the formal juvenile justice process, may be illusory. Nevertheless, some diversion programs have proven to be an effective and cost-efficient response to many juvenile offenders. As a result, diversion will continue to receive considerable attention as a juvenile justice strategy.

key ConCepts

decriminalization: The act of redefining status offenses as social problems to be dealt with by welfare agencies as opposed to criminal actions to be handled by juvenile courts. deterrent: Refers to actions taken to influence a person’s behavior by imposing or threaten- ing to impose a legal sanction such as probation, incarceration, a fine, etc. disproportionate minority contact (DMC): Refers to the difference in the rate of contact between minority youths and white youths at each stage of the juvenile justice process. If the rate of contact of minority youths is greater than that of white youths, DMC exists. diversion: The processing of youths who are alleged to have violated the law in ways that avoid the formal juvenile justice process. due process: Refers to the actions that are necessary at each step of the juvenile justice pro- cess to ensure that youths are treated fairly and that their rights are protected.

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experimental design: Research design in which subjects are randomly assigned to experi- mental and control groups. Juvenile Awareness Project: A program in which long-term prison inmates meet with juve- niles in counseling, educational, or confrontational sessions for the purpose of exposing the youths to the harsh realities of prison life. Scared Straight is an example of this type of program. labeling: The process by which a derogatory or otherwise negative term comes to be associ- ated with a person. Being labeled with a term like delinquent or chronic offender may cause a person to develop negative self-perceptions and cause others to respond to the person based on the label. Furthermore, labeling can limit the opportunities available to the person and can lead him or her to develop a deviant identity, increasing the likelihood of subse- quent offending. net-widening: Increasing the availability of programs to handle youth offenders outside of the formal juvenile justice process, thereby causing youths who would otherwise have been left alone to be placed under the control of juvenile justice programs. quasi-experimental design: Research designs that can be used to explore possible cause- and-effect relationships when true experimental designs are not possible. What distin- guishes these designs from experimental designs is that they do not involve random assignment of subjects to experimental and control groups. radical nonintervention: The strategy of not intervening with youths who violate the law (i.e., not placing them in the juvenile justice process) if possible. restorative justice: A process designed to repair the harm done to the victim and the com- munity that entails bringing the interested parties, such as the victim, offender, and a com- munity representative, to a nonconfrontational setting where an agreeable resolution to the youth’s illegal behavior can be reached. societal reaction perspective: The point of view according to which social responses, particularly formal social responses, can contribute to subsequent delinquent behavior. This perspective favors the diversion and deinstitutionalization of juvenile offenders when pos- sible and questions the wisdom of responding through formal means to each act of youth misbehavior (e.g., by arresting and trying the offender). youth services bureau: An agency that provides counseling, tutoring, mentoring, advocacy, and job referrals for youths in order to keep them out of the formal juvenile justice process.

revIew QuestIons

1. What is the definition of diversion, and what are the goals of diversion? 2. Explain the principle of radical nonintervention as it relates to youth delinquency and

diversion. 3. What are youth services bureaus, and what role do they play in the diversion of youths

from the formal juvenile justice process? 4. How did the social climate in the 1960s and 1970s contribute to the movement toward

diversion programs? 5. Why do sociologists such as Edwin Lemert support some types of diversion programs? 6. What criminological theory supports the use of diversion? 7. What is a “scared straight” program, and are such programs effective diversion programs?

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8. What is the Sacramento 601 Diversion Project, and did it work? 9. How effective is diversion as a mechanism for reducing or preventing recidivism? Sup-

port your position. 10. What are five drawbacks to using diversion for youth offenders?

aDDItIonal reaDIngs

Braithwaite, J. (2007). Encourage restorative justice. Criminology and Public Policy, 6(4), 689–696.

Bullington, B., Sprowls, J., Katkin, D., & Phillips, M. (1978). A critique of diversionary juvenile justice. Crime and Delinquency, 24(1), 59–71.

Cressey, D. R., & McDermott, R. A. (1974). Diversion from the juvenile justice system. Washington, DC: U.S. Department of Justice.

Lundman, R. J. (2001). Prevention and control of juvenile delinquency (3rd ed.). New York: Oxford University Press. See chapters on diversion.

Schur, E. M. (1973). Radical nonintervention: Rethinking the delinquency problem. Englewood Cliffs, NJ: Prentice Hall.

notes

1. President’s Commission on Law Enforcement and Administration of Justice. (1967). Task force report: Juvenile delinquency and youth crime. Washington, DC: U.S. Govern- ment Printing Office.

2. Carter, R. M., & Klein, M. (Eds.). (1967). Back on the street: The diversion of juvenile offenders. Englewood Cliffs, NJ: Prentice Hall.

3. Schur, E. M. (1973). Radical nonintervention: Rethinking the delinquency problem. Engle- wood Cliffs, NJ: Prentice Hall.

4. Lundman, R. J. (2001). Prevention and control of juvenile delinquency (3rd ed.). New York: Oxford University Press.

5. Whitehead, J. T., & Lab, S. P. (1996). Juvenile justice: An introduction (2nd ed.). Cincin- nati, OH: Anderson.

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dom House. 10. Roberts, A. R. (1998a). The emergence and proliferation of juvenile diversion programs.

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11. Roberts, A. R. (1998b). Community strategies with juvenile offenders. In A. R. Roberts (Ed.), Juvenile justice: Policies, programs, and services (2nd ed.). Chicago: Nelson-Hall, p. 117.

12. Roberts, 1998b. 13. Rubin, 1985.

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9781449667603_CH5

5 The Development of the Juvenile Court

Introduction
The Social Context of the Juvenile Court
The Legal Context of the Juvenile Court
The Operation of the Early Juvenile Courts
The Legal Reform Years
Legal Issues
Chapter Summary
Key Concepts
Review Questions
Additional Readings
Cases Cited
Notes

9781449667603_CH6

6 Public and Police Responses to Juvenile Offenders

Introduction
Youths and the Public: The Informal Juvenile Justice Process
Police Responses to Juvenile Offenders
Legal Issues
Chapter Summary
Key Concepts
Review Questions
Additional Readings
Cases Cited
Notes

9781449667603_CH7

7 Juvenile Diversion

Introduction
Early Efforts at Diversion
The Theoretical Foundation of Diversion
The Social Context of the 1960s and the Popularization of Diversion
The Policy Implications of Societal Reaction Theory
Other Rationales for Diversion Programs
The Spread of Diversion Programs Since the 1960s
Contemporary Diversion Strategies and Programs
The Effectiveness of Diversion
Legal Issues
Chapter Summary
Key Concepts
Review Questions
Additional Readings
Notes