KIM WOODS Criminal Justice Multiple Choice

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Step 16

Juvenile Courts

Phyllis B. Gerstenfeld

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On June 8, 1964, Gerald Francis Gault and his friend, Ronald Lewis, spent the day making prank phone calls. When one recipient of their calls, Mrs. Cook, com- plained to the police, the county sheriff took Gault into custody. The next day he was questioned before a judge. On June 15, a second hearing was held. Mrs. Cook was not there, and no witnesses were sworn. No jury was seated; no lawyers were present. No Fifth Amendment warnings were given to Gault before he was ques- tioned. At the end of the hearing, Gerry Gault was to be incarcerated for nearly six years. No appeal was permitted.

How could this be? The answer is that Gerry Gault was fifteen years old, and these hearings occurred in Juvenile Court. Had Gault been tried as an adult, he would have been entitled to many more procedural rights, and he would have faced a maximum sentence of $50 or two months in jail. But as we will see in this chap- ter, juvenile courts are quite different from ordinary courts.

BEFORE JUVENILE COURTS

Until the industrial era, relatively few children were processed by the courts. Instead, fathers were given ultimate legal control and authority over their children. This worked well when most people earned their living from the land: A father could threaten to expel a disobedient child from the family farm, exposing the child to poverty and starvation. Moreover, even young children spent most of their waking hours working hard under their parents’ watchful eyes, and so had little opportunity for mischief.

For those youths whom parents were unable to control, the rules were fairly clear. In both English and American common law systems, children under the age of seven could not be held criminally responsible for their acts because it was presumed

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This chapter was written for this book by Phyllis B. Gerstenfeld, J.D., Ph.D.

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that they were unable to form criminal intent. Children between the ages of seven and fourteen were also presumed to be unable to form intent, but this presumption could be overcome by evidence that the child knew what he or she was doing. If such evi- dence existed, or if the child was over age fourteen, he or she was treated like an adult. In the United States, some children as young as twelve have been subject to the ultimate adult penalty: death (Streib, 1987).

As more people moved to cities, the family became a less effective method of control. Furthermore, levels of urban poverty increased, leaving many children destitute. The first institution for wayward and destitute youths, the Bridewell, was established in London in 1555. The first youth correction institution in the United States was the House of Refuge, built in New York City in 1825. No court hearing was required to place a child in a House of Refuge, and children could remain there until their eighteenth or twenty-first birthday. A child could be committed by a par- ent or by a government agent, such as a constable. The idea behind these establish- ments was that adult prisons, rather than reforming delinquent youth, would merely make them worse.

In 1838, the mother of a minor named Mary Ann Crouse wished to commit her daughter to the Philadelphia House of Refuge. Mary Ann’s father, who felt that she should remain at home, disagreed and argued that committing her amounted to punishing her without a trial. The Pennsylvania Supreme Court held in ex parte Crouse that Mary Ann’s commitment was legal under the doctrine of parens patriae (the state as parent). The court stated that when a parent is unwilling or unable to control a child, the state has the power to step in and act in the child’s and society’s best interests. Houses of Refuge, the court wrote, are meant not for pun- ishment but for reformation; therefore, the formal due process protections of crim- inal trials were unnecessary:

The infant has been snatched from a course which must have ended in confirmed depravity . . . and not only is the restraint of her person lawful, but it would be an act of extreme cruelty to release her from it. (Roush, 1996)

The doctrine of parens patriae became the basis of the first juvenile court. In fact, although U.S. Supreme Court cases in the 1960s and 1970s made significant changes in how juvenile courts operate, parens patriae remains the courts’ foundation.

THE EARLY JUVENILE COURTS

As immigration, urbanization, poverty, and crime continued to increase, so did the pressure to do more to combat juvenile delinquency. Reformatories were over- crowded and their conditions were often deplorable, and many children were sim- ply confined in adult institutions. Moreover, the emerging sciences of criminology and psychology argued that there were certain causes of crime; therefore, once the

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causes were discovered, offenders could be “cured” of their criminality. And so, at the urging of several prominent reformers, the juvenile courts were born. The first was the Cook County Juvenile Court, founded in Chicago in 1899. Within two decades, all but two states had followed Illinois’s lead and established juvenile courts of their own (Ainsworth, 1991).

The early juvenile courts had several common features. The most important was that they operated under the parens patriae doctrine, and so were considered civil rather than criminal. The hearings were informal, with the stated goals being to discover the root of the child’s problems and to solve those problems. Juvenile courts heard not only cases involving delinquency (in which the child was accused of violating a criminal law), but also status offenses (in which the child was gener- ally wayward or a runaway), and cases where the child was neglected, abused, or destitute. No lawyers were involved and the hearings were nonadversarial. In fact, as late as 1965, more than one quarter of juvenile court judges had no formal legal training (Davis et al., 1997).

Because the purpose of juvenile courts (reformation) was different from crim- inal courts (punishment), the juvenile court proceedings did not include all of the due process trappings of criminal court. Not only were due process protections deemed unnecessary, it was argued, but they would interfere with the court’s mission.

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The Early Juvenile Courts 493

A juvenile court in Denver, Colorado, in 1915 attended by the judge, court clerk, probation officer, and several boys. The charges faced by the boys might have ranged from incorrigibility to truancy to serious crimes, and they could expect sentences that reflected the rehabilitative ideals of the court, ranging from probation to detention in a reformatory. Now, young people must commit actual offenses (rather than so-called “status offenses”) before they may be held in detention, and lawmak- ers are changing juvenile laws to allow certification of minors to adult courts in serious cases. SOURCE: Courtesy of the Library of Congress.

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Therefore, there were no juries, and the child need not be found guilty beyond a rea- sonable doubt. As one of the creators of the juvenile court system wrote,

The problem for determination by the [juvenile court] judge is not, Has this boy or girl committed a specific wrong, but What is he, how has he become what he is, and what can be done in his interest and the interest of the state to save him from a downward career. (Mack, 1909)

There were other differences as well. To protect children from the stigma that crim- inal convictions bring, juvenile court proceedings were closed to the public, records were kept confidential, and an entirely different terminology was con- structed (see Box 16.1 for some important differences between the terminology used in adult and juvenile courts). Even the look of the courts was different: Rather than an imposing traditional courtroom, hearings were to take place in less formal settings with a table and chairs. Ideally, the judge, child, parents, and probation officer could sit informally around this table and determine what would be best for the child.

Juvenile court judges were also given a great deal of discretion in determin- ing what was to happen to children who appeared before the court. Many more kinds of placements for minors were available than for adults. In addition, those

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BOX 16.1

Adult versus Juvenile Court Terminology

Adult Term Juvenile Equivalent

Information, indictment Petition

Trial Adjudication hearing

Name of case: State v. Doe or United States v. Doe Name of case: In re Doe

Defendant Minor

Conviction Delinquency adjudication

Guilty Delinquent

Sentencing hearing Disposition hearing

Sentence Disposition

Jail Juvenile Hall

Prison Reformatory, reform school, youth authority, industrial school, and so on

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children who were confined to institutions such as reformatories were not given determinate sentences as are adults sent to prison. Instead, they were often ordered to remain incarcerated until they reached the age of majority (usually age eighteen or twenty-one), or until they were “cured.” Thus did Gerry Gault face nearly six years (that is, until the age of twenty-one) in detention for a minor infraction.

THE DUE PROCESS REVOLUTION

As originally conceived, the juvenile courts gave children a tradeoff: They were expected to give up their due process rights, and in return, their best interests were to be secured and they were to be given individualized treatment rather than pun- ishment. The juvenile courts were to operate more like social service agencies than like places of justice.

Unfortunately, the promise of the juvenile courts was almost immediately broken. Understaffed courts were overburdened by heavy caseloads. Much of the staff was underpaid (or not paid at all—many were volunteers) and undertrained; many juvenile court judges were not formally trained in law at all. This ran con- trary to the original intent of the system.

The courts were not the only problem. The hoped-for variety of dispositional alternatives did not materialize. In 1920, for example, only 55 percent of juvenile court systems provided any probation services (Ryerson, 1978). Conditions in many existing institutions remained appalling because of overcrowding and abuse. Again, this violated the original premise of the system. The continuing problems of the juvenile justice system, together with a Supreme Court inclined to promote constitutional rights, engendered a series of landmark cases, the most important of which was Gerry Gault’s.

The first major U.S. Supreme Court case on juvenile justice was Kent v. United States, in 1966. Sixteen-year-old Morris Kent was transferred from juvenile to adult court to stand trial for rape. There was no transfer hearing, nor did the judge state the basis for his decision; he simply decided to transfer Kent on the basis (presumably) of the contents of Kent’s probation files. The Supreme Court held that Kent’s due process rights had been violated.

The direct impact of Kent was unclear. The case arose in Washington, DC, and the Supreme Court may have been acting in its role as overseer of the District of Columbia court system rather than as the nation’s highest court. But Kent was significant in that it signaled the Court’s dissatisfaction with the nation’s juvenile justice system:

There is much evidence that some juvenile courts . . . lack the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he

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gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.

Just a year later, the Court’s skepticism reached a peak when it heard Gerry Gault’s case (In re Gault, 1967). Although the Court questioned the concept of parens patriae, it did not discard it entirely. However, the Court held that whenever juveniles face the possibility of confinement, they are entitled to certain basic due process rights (see Box 16.2 for a list of rights accorded to juveniles, and a list of those that have not yet been extended to juveniles). “The condition of being a boy,” Justice Fortas wrote for the majority, “does not justify a kangaroo court.” Having been locked up for three years, Gerry Gault was finally free. He eventually became—what else!—a lawyer.

Some Justices expressed concern that affording juveniles due process rights would further hamper the success of the juvenile courts, and would effectively erase the distinction between the adult and juvenile systems (see Box 16.3 for some important excerpts from the Gault case). Nevertheless, in succeeding cases, the Supreme Court continued to grant additional rights. In In re Winship (1970), the Court held that the standard of proof beyond a reasonable doubt must be extended to juvenile as well as adult proceedings. In Breed v. Jones (1975), the Court held that the protection against double jeopardy applied in juvenile cases as well.

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BOX 16.2

Due Process Rights and Juvenile Courts

Juveniles are entitled to the following:

Transfer hearing before trial in adult court Kent v. United States, 1966

Notice of charges Assistance of counsel Confront witnesses and cross-examine them In re Gault, 1967 Right against self-incrimination Transcript of proceedings Appellate review

Proof beyond a reasonable doubt In re Winship, 1970

Double jeopardy protection Breed v. Jones, 1975

Juveniles are not entitled to the following:

Jury trial McKeiver v. Pennsylvania, 1971

Mandatory presence of parents during interrogation Fare v. Michael C., 1979

Right against preventative detention Schall v. Martin, 1984

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But the Supreme Court would not grant juveniles all the rights that adults are afforded. In McKeiver v. Pennsylvania (1971), the Court declined to require jury trials in juvenile courts. This was not, as many lay people suppose, because requir- ing a jury of peers would mean that juveniles would have teenaged jurors; the “peers” language of the Sixth Amendment is not so strict. Instead, the Court expressed its fear that imposing a jury on the process would eliminate the last real boundary between the juvenile and adult courts. The Court was still extremely skeptical of the juvenile court system. Justice Blackmun wrote, “We must recog- nize . . . that the fond and idealistic hopes of the juvenile court proponents and early reformers of three generations ago have not been realized.” McKeiver v. Pennsylvania, (1971; p. 543-4). However, even though the Court found the juvenile

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BOX 16.3

Important Excerpts from In re Gault (1967)

Justice Abe Fortas, writing for the majority: [Recent studies] suggest that the appearance as well as the actuality of fairness, impartiality and orderliness—in short, the essentials of due process, may be a more impressive and therapeutic attitude so long as the juvenile is concerned.

It is of no constitutional consequence—and limited practical meaning—that the institution to which he is committed is called an Industrial School. The fact of the matter is, that however euphemistic the title, a “receiving home” or an “indus- trial school” for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. . . . Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodi- ans, state employees, and “delinquents” confined with him for anything from way- wardness to rape and homicide.

Under our Constitution, the condition of being a boy does not justify a kanga- roo court.

Justice Hugo Black, concurring: The juvenile court planners envisaged a system that would practically immunize juveniles from “punishment” for “crimes” in an effort to save them from youthful indiscretions and stigmas due to criminal charges or convictions. I agree with the Court, however, that this exalted ideal has failed of achievement since the beginning of the system.

Justice Potter Stewart, dissenting: The inflexible restrictions that the Constitution so wisely made applicable to adver- sary criminal trials have no inevitable place in the proceedings of those social serv- ice agencies known as juvenile or family courts. And to impose the Court’s long list of requirements upon juvenile proceedings in every area of the country is to invite a long step backwards into the nineteenth century.

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court system to be gravely ill, it was still unwilling to bury it. In the Court’s eyes, juvenile courts still held promise. Jury trials, Justice Blackmun wrote, would not cure the system, but would only kill it. For this reason alone, the Court declined to require jury trials in juvenile courts.

In McKeiver the Court didn’t require jury trials, but it didn’t expressly prohibit them either. In fact, several states, such as Texas, have passed laws permitting or requiring jury trials in juvenile court cases. Furthermore, some areas have recently begun experimenting with “teen courts”; we’ll look at those later in this step.

JUVENILE COURT JURISDICTION

In many jurisdictions, the juvenile court is a subsidiary of the trial court of general jurisdiction (that is, the court in which adults are tried), or of other specialty courts such as probate courts (Rubin, 1985). In other places, the juvenile court is a sepa- rate entity altogether. Although they are most commonly called juvenile courts, they have other titles as well, such as family courts.

All juvenile courts have a judge of some kind. Today, most people presiding over juvenile court hearings have law degrees, but they may not technically be “judges.” To accommodate spiraling caseloads, judges in many states are empow- ered to appoint referees or commissioners (the terms are virtually interchange- able). Referees have law degrees and act much like judges; however, most of their decisions are reviewable by their supervising judge. The office of referee brings less prestige than that of judge, and usually less pay.

Juvenile courts are courts of limited jurisdiction, in that they have the power to hear only certain types of cases. Usually, their jurisdiction is defined by the age and behavior of the offender. That is, they can hear cases involving people of cer- tain ages who are suspected of performing certain (mostly criminal) acts. Depend- ing on the location, they may hear cases involving abused and neglected children as well, and sometimes even divorce cases. The ages over which they have jurisdic- tion vary, but in most states the maximum age is seventeen; anyone who commits a crime after his or her eighteenth birthday becomes subject to the adult criminal courts. Some states also have minimum ages for juvenile court jurisdiction, and children below the minimum may not be prosecuted at all (although they may come under the auspices of Child Protective Services or similar agencies if the crime is serious or the child seems troubled).

In all states, youths may be tried in adult instead of juvenile courts under some circumstances: by statutory exclusion, judicial waiver, or concurrent jurisdiction.

Statutory exclusion means the legislature has passed laws that say certain juveniles who commit certain crimes will be tried as adults. These laws usually concern older offenders and serious or violent crimes. In recent years, states have been increasing the situations to which statutory exclusion applies by widening the

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number of crimes and lowering the minimum age. For example, California changed its laws in 1999 to require that children be tried as adults if they are four- teen or older and are accused of certain murders or sex offenses. Some states statu- torily exclude even more minors from juvenile status by setting the maximum age of juvenile court jurisdiction at age fifteen or sixteen instead of seventeen. In 1996, nearly a quarter million sixteen- and seventeen-year-olds were tried as adults in these states, and the number of juveniles who are tried as adults has been growing (Torbet and Szymanski, 1998).

Judicial waiver means that under certain circumstances, the juvenile court judge can choose to transfer the case to adult court. Usually, there are state statutes specifying which cases can be judicially waived and what factors the judge should consider. Because of the Supreme Court’s ruling in Kent v. United States (1966), the judge must hold a waiver hearing in which certain due process protections are given to the minor. The Supreme Court has also held that due to double jeopardy protections, any waiver hearing must occur before a juvenile adjudication hearing. Once the adjudication hearing has been held, the minor can no longer be tried as an adult for that crime (Breed v. Jones, 1975). Today, all but four states allow judicial waiver (Torbet and Szymanski, 1998).

Finally, fifteen jurisdictions have concurrent jurisdiction (Torbet and Szy- manski, 1998). This means that both the juvenile and adult courts have jurisdiction over certain cases. The prosecutor can decide which court will hear the case. Unlike in cases of judicial waiver, no hearing is required, and the decision is within the prosecutor’s discretion. Prosecutors are usually elected officials, and so their decisions in this regard may be swayed by public opinion. In Palm Beach County, Florida, for example, thirteen-year-old Nathaniel Brazill, an honor student with no delinquency record, was charged as an adult with first-degree murder for shooting his English teacher to death (Bragg, 2000).

In recent years, forty-four states have made it easier for children to be tried as adults by widening one or more of the transfer provisions. Most often, states did this by expanding the list of crimes eligible for statutory exclusion (Torbet and Szymanski, 1998). These changes were most likely a response to an increase in the juvenile crime rate in the 1980s and early 1990s, as well as several well-publicized cases of violent murders committed by teenagers. Ironically, however, by the time most of these laws were changed (1992 through 1997), the juvenile crime rate was decreasing steadily to historically low levels.

THE OPERATION OF JUVENILE COURTS

Most of the American court system can trace its roots directly back to the English common law system, and, as a result, courts tend to be somewhat similar from state to state (see Step 4 for more information on the history and development of adult courts).

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As we’ve seen, however, juvenile courts’ roots instead lie more in social services. There is, therefore, much more variability in juvenile courts between jurisdictions.

How does a case proceed through the juvenile court system? Again, this varies from place to place, but Figure 16.1 illustrates a typical example. To begin with, a case has to be referred to the court. This referral can come from a number of different sources: schools, parents, social service agencies, victims, and so on. However, by far the most common referral source is law enforcement. In 1997, for example, 84 percent of delinquency cases came to the juvenile courts from law enforcement agencies (Puzzanchera et al., 2000).

Once a juvenile is placed under arrest, a law enforcement agency has several options. First, it can refer the child to juvenile court. In 1997, this happened in 67 percent of juvenile arrests, an increase in percentage of previous years (OJJDP, 2000). Second, it can send the case to social services or other agencies (26 percent of arrests in 1997). Finally, in some instances the case can be sent directly to adult court (7 percent of arrests in 1997).

When a case is sent to juvenile court, it usually goes to an intake officer, who often is a juvenile probation officer. In some states, it may go to a prosecutor instead. This person may decide to dismiss the case if it doesn’t seem worth prose- cuting. For example, in Blythe, California, prosecutors chose not to pursue a case against two girls, ages five and six, who suffocated a three-year-old (Gold, 2000). They declined to prosecute because they presumed that children so young were unable to truly understand what they had done. Or the intake officer may handle the case informally, such as through a referral to a social service agency or informal probation. Another option is diversion: Many jurisdictions have diversion pro- grams for specific juveniles, such as first-time offenders or those with substance abuse problems. The idea behind diversion programs is to solve the child’s prob-

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Diversion

Intake

Dismissal or informal resolution

Law enforcement, parents, school authorities, etc.

Disposition (probation, youth authority, etc.)

Waiver to adult court

Juvenile Court

Nonadjudicated

FIGURE 16.1 Typical juvenile justice process

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lems without recourse to the more formal proceedings of juvenile court. If the offense and the age of the offender place the case under concurrent jurisdiction, a prosecutor may decide at this point to file the case in adult court. Finally, the intake officer may choose to refer the case to the juvenile court for formal processing, by filing a petition. The petition acts much like an indictment or information in an adult criminal case. At one time, more cases were handled informally than for- mally, but that changed in 1993. In 1997, 57 percent of intake cases were processed formally. Since then, the proportion of cases handled formally has been increasing steadily (Puzzanchera et al., 2000).

Once a petition is filed, the case is in the hands of the juvenile court judge (or referee). If judicial waiver is an option, a waiver hearing will be held. Relatively few cases at this point end up being transferred to adult court. In 1997, for example, there were 8,400 waivers from juvenile court, which was about 0.5 percent of the nearly 1.8 million cases nationwide (Puzzanchera et al., 2000).

If the case is not waived, an adjudication hearing will be held. As we’ve already learned, this is the juvenile equivalent of a trial. Today, this hearing includes many trappings of a criminal case, such as lawyers, transcripts, and sworn witnesses. Like adults, juveniles have the right a court-appointed attorney if they cannot afford one of their own, and the amount of assistance these lawyers provide can vary a great deal. In many jurisdictions, public defenders have enormous case- loads. Knowing that juvenile offenses often bring less harsh consequences than adult offenses, some public defenders may limit the time they spend with their youthful clients in order to have more time for the adults. In fact, especially for rel- atively minor crimes, the public defender may only meet his or her client for the first time a few minutes before the hearing begins. Furthermore, despite legal scholars’ urging that children not be permitted to waive their right to counsel, chil- dren are allowed to do so, and often do (probably because it is more expedient and less expensive for the system).

Even when a juvenile is represented by counsel who has time to devote to the case, the attorney’s role is unclear. Suppose a lawyer knows she can effectively defend her minor client in such a way that the minor will not be adjudicated delin- quent. But also suppose that the lawyer believes that her client is troubled, and that it would be in his best interests to be adjudicated delinquent and receive treatment from the system. What is her legal and ethical duty? The answer is not entirely clear.

Depending on the jurisdiction, the case may be prosecuted by either a prose- cutor or by a probation officer. In either case, a probation report on the child should be available to the judge. Thus, the decision in the case may depend not only on the evidence presented in the courtroom, but also on the child’s history and present family circumstances. Since the 1970 In re Winship decision, juveniles have had the right to be found guilty beyond a reasonable doubt.

In actuality, especially in urban areas, juvenile court hearings may be extremely brief. Ayers (1997) reports that in Cook County Juvenile Court, the nation’s original

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juvenile court, the average juvenile court hearing lasts twelve minutes. A typical judge there has 1,500 to 2,000 cases pending on his or her docket on any particular day. Clearly, the kind of careful, individualized treatment envisioned by the court’s creators is impossible under these circumstances.

In 1997, juveniles were adjudicated delinquent in about 58 percent of cases (OJJDP, 2000). In the remainder of cases, the case was dismissed for lack of evi- dence, the juvenile was placed on probation pursuant to a plea bargain, other sanc- tions such as restitution or diversion were imposed, or the juvenile was placed in the care of a social service agency.

When a juvenile is adjudicated delinquent, the judge must choose a disposi- tion, which is the equivalent of an adult’s sentence. By far the most common dispo- sition (54 percent in 1997) is probation (OJJDP, 2000). Juveniles may also be given other sanctions, such as restitution, or they may be placed in some confined setting.

As we learned, the architects of the juvenile court system imagined that there would be many different dispositional alternatives available, so that each child’s individualized needs could be met. The degree to which this dream has been real- ized varies, but there are usually more options for children than for adults. Some alternatives include juvenile halls (which are essentially jails for youths), boot camps, wilderness programs, ranches, group homes, foster homes, residential treatment facilities, outpatient treatment programs, and youth correctional facili- ties. The availability of these resources varies by jurisdiction, with urban areas generally having more available alternatives.

Although a recommendation for placement is usually made by a probation officer, juvenile court judges have a great deal of discretion in these matters. Their decisions, as commentators have noted, may be affected by many factors:

A judge’s personal values and philosophy strongly affect his [sic] dispositions. Judges manipulate dispositions, and also are manipulated into particular dispositions by those who participate in hearings and by external community pressures. Judges are seen as independent decision makers, but their dispositions are made within the context of a system that may provide few options. (Rubin, 1985)

Therefore, which judge happens to hear a case may affect the case outcome (Pod- kopacz and Feld, 1996). Unfortunately, so may factors such as the offender’s race (Bishop and Frazier, 1996).

The judge may have discretion not only over the kind of disposition, but also the length. As we’ve discussed already, juvenile dispositions were originally meant to be indeterminate. This made sense, if the purpose of the system was treatment rather than rehabilitation. After all, if you were seriously ill, your doctor would not admit you for a hospital stay of three days: He or she would keep you in the hospi- tal until (and only until) you were cured! More recently, however, as the system has turned toward more punitive goals, many jurisdictions have required determinate sentences instead. Although juvenile courts’ authority rarely extends past a per-

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son’s eighteenth birthday, juveniles may be confined beyond that age. California is the most extreme example of this: People can remain subject to the California Youth Authority until their twenty-fifth birthday.

As you may recall, early reformers were appalled at the conditions within the Houses of Refuge. Unfortunately, problems persist in many juvenile facilities today. The most disturbing of these are overcrowding, violence, and lack of treat- ment programs. For an extensive discussion of these problems, see the Internet resources listed in Box 16.4 and on the text Web site under “juvenile courts.”

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The Challenges Today 503

BOX 16.4

Useful Internet Sites on Juvenile Courts

Below are a few Internet resources for juvenile courts. You may find others on the text Web site under “juvenile courts.”

Office of Juvenile Justice and Delinquency Prevention http://ojjdp.ncjrs.org/

Justice Information Center http://www.ncjrs.org/

National Center for Juvenile Justice http://www.ncjj.org/

Center on Juvenile and Community Justice http://www.cjcj.org/

THE CHALLENGES TODAY

In 1997, 2.8 million people under the age of 18 were arrested in the United States, and juvenile courts handled nearly 1.8 million cases. This was a 48 percent increase since 1988 and a 400 percent increase since 1960 (Stahl, 2000; Puz- zanchera et al., 2000). As a result, juvenile cases are facing increasing delays in processing. The median time for case processing increased 26 percent between 1985 and 1994. Although professional standards recommend completing a juve- nile case within 90 days, in the more populous jurisdictions, nearly half the cases in 1994 exceeded this limit (Butts, 1997).

If the juvenile court system was already overburdened in the early 1900s, what is the case today? Are juvenile courts giving youths either justice or help? Short of spending millions and millions more dollars, what is to be done?

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One solution to juvenile court overcrowding is to transfer more youths to adult courts. Many states have done just that in recent years. As discussed above, in the last decade nearly every state has increased the circumstances under which juveniles can be transferred to criminal court, and the number of cases that have been transferred has increased as well (Snyder, Sickmund, and Poe-Yamagata, 2000). Of course, this doesn’t really solve the overcrowding problem: It merely shifts the problem to the adult courts, which are already overcrowded themselves.

Furthermore, there are several fundamental arguments against treating juve- niles as adults. First, many assert that it is inappropriate to treat children as adults when children are incapable of an adult’s comprehension of the consequences of their acts and are unable to make adult-like decisions. This was the basis of the common law infancy defense (see Step 2 for more information on infancy and other defenses). Second, treating children as adults often means housing them with adult prisoners. This frequently leads to victimization of the children. Finally, it is argued, children are still malleable. Rather than lock them up in prisons, where they are only likely to become more criminal, why not try to reform them?

Besides overcrowding, juvenile courts are facing other significant challenges as well. One is the overrepresentation of minorities, and especially African Ameri- cans, in the juvenile justice system (Bishop and Frazier, 1996). At every stage, from arrest through disposition, black youths are overrepresented, and this cannot be entirely accounted for by differential offense rates. In 1999, the United States Office of Juvenile Justice and Delinquency Prevention concluded that, “There is substantial evidence of widespread disparity in juvenile case processing . . . [T]here is substantial evidence that minority youth are often treated differently from majority youth within the juvenile justice system” (Snyder and Sickmund, 1999, p. 193). Clearly, this is cause for great concern.

Another problem faced by the courts is how to deal with a wide variety of offenders. In 1997, 78 percent of juvenile arrests were for nonviolent offenses; 54 percent of males and 73 percent of females who enter the juvenile justice system never return a second time (Snyder and Sickmund, 1999). The most violent crimes—homicide, rape, robbery, and aggravated assault—comprised only 6 per- cent of arrests (Stahl, 2000). Can the same system effectively deal with this small minority while also dealing with the large majority of youths who are nonviolent and nonrepeat offenders?

Yet another issue confronting the juvenile courts today is a fundamental reassessment of their role. As we’ve discussed, the initial purpose of the courts was rehabilitative. In the 1990s, however, the focus became increasingly punitive, largely in response to inaccurate public perceptions that the juvenile crime rate was spiraling out of control (Feld, 1993; Lederman, 1999). But is this harsh approach appropriate, especially considering that most juveniles are nonviolent and will grow out of their criminal behavior (Klein, 1998)? And if the goal of the juvenile courts is to be punishment, why bother having them at all? They would be merely duplicating (poorly, some would argue) the purpose of the adult courts (Feld, 1993).

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But if the punitive ideal is ultimately rejected and the courts return to the ther- apeutic ideal, substantial difficulties remain. Individualized treatment demands a great deal of discretion on the part of the courts; how can this be balanced with the due process protections required by Gault? Can justice and social work be dis- pensed by the same entity, especially if that entity is overloaded with cases? Some commentators have argued that this is simply impossible (see, e.g., Feld, 1993).

All of these challenges are so significant that it is unclear whether the juve- nile courts will survive far into their second century. One commentator referred to it as a “bankrupt legal institution” (Melton, 1989). At the very least, it seems inevitable that they will be substantially reorganized, but the question remains of how to do this.

ANSWERING THE CHALLENGE

One model that has been advocated is to simply abolish juvenile courts. As one crim- inologist (Feld, 1999) noted, “The fundamental shortcoming of the traditional juve- nile court is not a failure of implementation but a failure of conception” (p. 358). Instead of a separate juvenile system, youths can be tried as adults and legislatures can create additional safeguards to protect them, such as providing for expungement of their records after they have served their sentences. “Full parity in criminal courts, coupled with alternative legislative safeguards for children, can provide the same or greater protections than does the current juvenile court” (Feld, 1999, p. 366).

A less drastic approach is to restructure the operation of juvenile courts. One recommendation is to extend juvenile court authority over a broad variety of youth and family concerns, including abuse and neglect (Lewis, 1999). The juvenile court was originally conceived to operate this way, as a large number of delinquent children are abuse or neglect victims. Increasing jurisdiction this way could improve prevention and increase treatment options.

A third recommendation is to increase the courts’ use of early intervention programs (Lederman, 1999). Ideally, of course, intervention should occur before a child ever breaks the law. Improvement of services to at-risk youth could accom- plish this. But once the law has been violated, the juvenile courts can still act to prevent future and more serious offenses.

One attempt at this has been the drug court movement. Most drug courts have been aimed at adults, but a significant minority have been created expressly for juvenile offenders. As with adults, many juvenile crimes can be traced to sub- stance abuse. Drug courts employ intensive supervision, treatment programs, drug testing, and aftercare programs (Roberts, Brophy, and Cooper, 1997). Offenders who succeed at eliminating substance abuse and illegal behavior can avoid punitive sanctions. Although these programs can be expensive in the short run, the hope is that they will reduce recidivism in the long run. They also have the advantage of closely meeting the juvenile courts’ rehabilitative ideals.

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Another recent innovation is teen courts (sometimes called youth or peer courts). These are aimed at first-time offenders, and usually for relatively minor offenses. In a teen court, volunteer youths serve as attorneys (usually mentored by real lawyers), jurors, clerks, bailiffs, and sometimes judges. The offenders must admit their guilt, and the jury determines an appropriate sentence. Typical disposi- tions include community service, apology letters, teen court jury duty, substance abuse classes, and restitution (Butts, Hoffman, and Buck, 1999). Proponents of these courts believe that they will educate youths about the justice system and hold them accountable for their actions. It is also hoped that teens will be particularly responsive to the sanctions of their peers, as opposed to those of adults. As of 1999, there were more than 650 teen courts in the United States, with plans for many more in the works (OJJDP, 2000).

Because both drug courts and teen courts are new, it remains to be seen how effective they are in achieving their goals and also what other innovations for the juvenile courts are in store.

THE FUTURE

What kind of courts will the Gerry Gaults and other youths of the future be facing? Will the juvenile justice system ever achieve what it promised to a century ago? If so, how? Or have the juvenile courts been merely a lengthy and unsuccessful experiment that should now be abandoned?

Nobody without a crystal ball can answer these questions today. One thing can be predicted with great certainty, however: Juvenile courts and the treatment of juvenile offenders will continue to be issues of great interest and importance to policymakers, researchers, and the public at large.

D I S C U S S I O N Q U E S T I O N S

1. What is the relationship, historically and today, between the economy and delinquency?

2. The doctrine of parens patriae allows the government to step in and take over the parenting role, even against the wishes of a child’s actual parent. When should the government be allowed to contravene parental power when it comes to raising a child?

3. What are the advantages and disadvantages of each of the distinctions between juvenile and adult courts?

4. What kind of educational and professional background should a juvenile court judge have?

5. Discuss the pros and cons of granting juvenile court judges broad discretion.

6. While the entire U.S. Supreme Court appeared highly skeptical of the juvenile justice system, the justices did not agree on how to “fix” it. Do you agree with the majority that the problems would be remedied through the imposition of due process protections?

7. Discuss whether juveniles should be granted the right to a jury trial. In some states, (e.g., Califor- nia) juvenile court adjudications can count as the first two of a person’s “three strikes.” This

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means the person need commit only one felony as an adult to receive life imprisonment. Should this affect juvenile’s access to jury trials?

8. What factors should be considered in decided whether to try a juvenile as an adult? Who should make this decision: legislatures, prosecutors, or judges?

9. Should minors be permitted to waive their rights to counsel?

10. Given that severe budgetary restraints usually exist, how can we assure that juveniles receive effective assistance of counsel?

11. What can be done to address the overrepresentation of minority youths in the juvenile justice system?

12. What do you see as the role of juvenile courts today? How does that differ from the role of adult criminal courts?

13. Should juvenile courts be considered a failed experiment and abolished? If not, how should they be restructured?

14. How would you measure the effectiveness of a teen court program? Would you support such a program where you live?

15. What do you think the juvenile courts will be like 25 years from now? 100 years?

R E F E R E N C E S

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Ayers, W. (1997). A Kind and Just Parent: The Children of Juvenile Court. Boston: Beacon.

Bishop, D.M., and Frazier, C.E. (1996). Race effects in juvenile justice decision-making: Findings of a statewide analysis. Journal of Criminal Law and Criminology, 86: 392–413.

Bragg, R. (2000, June 22). When a child is accused of killing the law stays firm. The New York Times, p. A18.

Breed v. Jones, 421 U.S. 519 (1975).

Butts, J. (1997). Delays in Juvenile Court Processing of Delinquency Cases. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

Butts, J., Hoffman, D., and Buck, J. (1999). Teen courts in the United States: A profile of current pro- grams. Washington, DC: Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

Davis, S., Scott, E.S., Wadlington, W., and Whitebread, C.H. (1997). Children in the Legal System: Cases and Materials (2nd ed.). Westbury, NY: Foundation Press.

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Gold, S. (2000, August 24). Girls won’t be charged in death of boy. Los Angeles Times, p. 3.

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Roberts, M., Brophy, J., and Cooper, C. (1997). The Juvenile Court Movement. Washington, DC: Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

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Snyder, H., Sickmund, M., and Poe-Yamagata, E. (2000). Juvenile Transfers to Criminal Court in the 1990s: Lessons Learned from Four Studies. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

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