CATEGORY: HISTORY OF JUVENILE JUSTICE
By Barry Krisberg
September 1, 2005
"A century ago, reformers proved that prisons don’t help wayward children. Now America is learning that lesson all over again."
In 1899, Illinois and Colorado established a new “Children’s Court.” The idea was to substitute treatment and care for punishment of delinquent youths. These changes were promoted by child advocates such as the famous social activist Jane Addams and crusading judges like Denver’s Ben Lindsey, as well as influential women’s organizations and bar associations. Over the next 20 years, the concept of a separate court system for minors spread to most states. Although the new children’s court movement lacked adequate resources to fulfill its lofty mission, the intellectual promise was virtually unchallenged for two-thirds of the 20th century.
Several key assumptions lay behind the juvenile-court idea. First, children were not just “small adults,” and they needed to be handled differently. Second, there was a need for specially trained legal and correctional professionals to work with minors. Third, placing children in adult prisons and jails made them more antisocial and criminal. And ﬁnally, the emerging science of rehabilitation could rescue many of these troubled young people from lives of crime. In the intervening years, a wealth of research has validated each of these premises.
Despite broad support within the academic, legal, and social-work professions, the ideal often failed to live up to its promise. Over time, the juvenile-justice system in many states reverted to the punitive approach it was designed to replace. Though they were often called “training schools,” the institutions were juvenile prisons. And the premise that the court, by deﬁnition, was acting “in the best interest of the child” left young offenders without the rights guaranteed to adult criminal defendants. There were repeated accounts of abusive practices. The duration of conﬁnement was often unrelated to the severity of the offense. Juvenile hearings were usually secret, with no written transcripts and no right to appeal. Minors were not provided legal counsel, there were no safeguards against self-incrimination, and offenders were denied liberty without the due process of law guaranteed by the U.S. Constitution.
A series of legal challenges culminated in the landmark 1967 Supreme Court decision In Re Gault. Writing for the Court, Justice Abe Fortes proclaimed, “Under our Constitution, the condition of being a boy does not justify a kangaroo court.” Reviewing the case of 15-year-old Gerald Gault, who was sentenced to six years in an Arizona youth correctional facility for making an obscene phone call, the Court decreed that minors be afforded most of the due-process rights required in adult criminal courts.
Gault signaled a new era of reforms. One was a movement to divert as many youths as possible from the formal court system and to decriminalize “juvenile status offenses” such as truancy, running away, curfew violations, and incorrigibility. The 1970s witnessed widespread efforts to deinstitutionalize or “decarcerate” youngsters, moving them from secure detention centers and training schools to community-based programs that emphasized education and rehabilitation.
The most dramatic example came in 1972 in Massachusetts, where a respected reformer closed all of the state juvenile facilities and started over. Jerome Miller had been recruited to the state Department of Youth Services (DYS) to clean up a range of scandals and abuses. He encountered an intransigent bureaucracy. Corrections officers opposed even such modest reforms as letting youngsters wear street clothing instead of prison uniforms, or not requiring that their heads be completely shaven. Undeterred, Miller decided to close down the state’s network of jail-like training schools. As the young inmates of the notorious Lyman School were loaded onto a bus that would take them to dorms at the University of Massachusetts, to be housed temporarily until being reassigned to community programs, one top Miller deputy proclaimed to the shocked guards, “You can have the institutions; we are taking the kids.”
The training schools were replaced with a diverse network of small residential programs, typically with 25 children or fewer, located closer to the youths’ home communities. A range of nonresidential programs included day reporting centers and intensive home-based supervision. The DYS continued to operate about half of the most secure facilities. Private nonproﬁts were recruited to run the rest, as well as all of the community-based programs.
Although Miller left Massachusetts soon after becoming the department’s youth-services commissioner, the Bay State continued to expand and reﬁne the alternatives to the old prison-like training schools and never reopened the large juvenile institutions. Research by Harvard Law School and my organization, the National Council on Crime and Delinquency, showed that the Miller reforms successfully reduced the frequency and severity of new offenses of youth in the new programs compared with the training-school graduates.
As the Massachusetts model spread to many other states, Congress in 1974 created the federal Juvenile Justice and Delinquency Prevention Act, with bipartisan backing. The act established a federal Office of Juvenile Justice and Delinquency Prevention (OJJDP) to conduct research, provide training, and make grants to states and jurisdictions that voluntarily complied with the act’s mandates. The new law required participating states to remove status offenders and dependency cases from secure conﬁnement, and to separate juveniles from adults by “sight and sound” in correctional facilities. In 1980, the act was amended to require that participating states remove minors from jails. Forty-eight states participated.
Miller went on to implement variations of his Massachusetts reforms in Pennsylvania and Illinois. Other states that broadly followed Miller’s model included jurisdictions as politically diverse as Utah, Missouri, and Vermont. Often, publicity about abusive conditions in state facilities and lawsuits in federal courts catalyzed these reforms. From 1980 into the 1990s, Colorado, Indiana, Oklahoma, Maryland, Louisiana, Florida, Georgia, Rhode Island, and New Jersey were among states that began closing large, prison-like youth facilities. For a time, it appeared that the Miller reforms would become the “gold standard” for juvenile corrections, as the federal OJJDP provided training and support to jurisdictions seeking to replicate the Massachusetts approach.
The Invention of the “Super-Predator”
The rejection in some quarters of a reform model reﬂects both ideological preconceptions and misinformation about juvenile crime. Rates of serious violent juvenile crime as measured by the National Crime Survey were relatively constant between 1973 and 1989, then brieﬂy rose by more than one-third and peaked in 1993. Some cited demographics, as the children of the baby boomers reached their teenage years. Others pointed to an epidemic of crack cocaine that fueled urban violence, as well as high unemployment and declining economic prospects for low-skilled workers, especially among minority groups. No one really knows for sure. But fear of a violent juvenile crime wave led some to predict a new cohort of “super-predators.” Conservative academics such as James Q. Wilson and John DiIulio and a small band of mainstream criminologists such as Alfred Blumstein and James Fox forecast societal disaster. Wilson predicted “30,000 more young muggers, killers, and thieves”; DiIulio in 1990 foresaw another 270,000 violent juveniles by 2010. He warned of a “crime bomb” created by a generation of “fatherless, godless, and jobless [juvenile] super-predators.”
The media hyped the story, and many elected officials exploited it. The citizenry was told about a generation of babies, born to “crack-addicted” mothers, who would possess permanent neurological damage, including the inability to feel empathy. The scientiﬁc evidence supporting this claim was nonexistent. More than 40 states made it easier to transfer children to adult criminal courts. Educators enacted “zero-tolerance” policies to make it easier to expel youngsters from school, and numerous communities adopted youth curfews. Many jurisdictions turned to metal detectors in public schools, random locker searches, drug tests for athletes, and mandatory school uniforms.
The panic was bipartisan. Every crime bill debated by Congress during the Clinton administration included new federal laws against juvenile crime. Paradoxically, as Attorney General Janet Reno advocated for wider and stronger social safety nets for vulnerable families, President Bill Clinton joined congressional leaders demanding tougher treatment of juvenile felons, including more incarceration in both the adult and youth correctional systems.
However, the much-advertised generation of super-predators never materialized. After 1993, rates of serious juvenile crime began a decade-long decline to historically low levels. And this juvenile-crime drop happened before the tougher juvenile penalties were even implemented. The fear-mongering social scientists had based their dire predictions on grossly inaccurate data and faulty reasoning, but the creators of the super-predator myth prevailed in the public-policy arena throughout most of the ’90s. As we approached the centennial of the American juvenile court, it looked like the juvenile-justice ideal was dying.
The Ideal of Juvenile Justice Survives
Despite adverse political currents, the juvenile-justice ideal has received a new lease on life thanks to pioneering efforts by states and by foundations, as well as the continuing programmatic inﬂuence of the federal approach begun in the 1970s and expanded during the Clinton-Reno era.
One key initiative of the federal OJJDP is known as Balanced and Restorative Justice. This approach, now embraced by many jurisdictions, places a major value on involving victims in the rehabilitative process. By coming to terms with harm done to victims, the youthful offender is also offered a way to restore his or her role in the community.
The second signiﬁcant federal program is the Justice Department’s Comprehensive Strategy for Serious, Violent, and Chronic Juvenile Offenders, ﬁrst adopted in 1993. The research showed that a very small number of offenders committed most serious juvenile crimes, and that identiﬁcation and control of these “dangerous few” was key. However, unlike the response to the supposed super-predators, this strategy does not call for an across-the-board crackdown on at-risk youth. A comprehensive body of research assembled by two senior Justice Department juvenile-justice officials, John J. Wilson and James C. Howell, showed that prevention was the most cost-effective response to youth crime, and that strengthening the family and other core institutions was the most important goal for a youth-crime-control strategy.
The proposed comprehensive strategy was adopted by Reno as the official policy position of the Justice Department in all matters relating to juvenile crime, and the program was successfully implemented in more than 50 communities nationwide. The basic idea was to help local leaders build their youth-service systems to provide “the right service, for the right youth, at the right time.” This collaborative planning process helped policy-makers and professionals to debunk the myths about juvenile crime and to learn about interventions that were proven, as well as to foster more cooperative activities among multiple agencies. Most important, the effort showed community participants how to effectively respond to juvenile lawbreaking without resorting to mass-incarceration policies.
A third major national reform movement was launched by the Annie E. Casey Foundation in 1992. The goal: to reduce the overuse of juvenile-detention facilities and to redirect funding toward more effective services for at-risk youngsters. The foundation also sought to improve the conditions of conﬁnement for detained youth and to reduce the overrepresentation of minority youths in detention.
The Casey Foundation approach required a multiagency planning process and included the development of improved risk screening, expansion of options for most detained youths, and efforts to expedite the processing of cases. After initial demonstration projects, the foundation has expanded the program to scores of communities. It also offers technical assistance and convenes an annual meeting. At the last such convening, in San Francisco, more than 700 people from across the nation gathered to discuss ways to further reduce unnecessary juvenile detention. The original demonstration project has led to a vibrant national movement, which includes high-quality replication manuals and a documentary, plus academic and professional publications.
These approaches all require collaborations among many sectors of the community. They all employ data and evidence-based practices to guide the reform agenda. Diversity is recognized as vital because one-size-ﬁts-all programs usually fail. Instead, they seek to create a comprehensive continuum of appropriate services. Preventive strategies and early interventions are viewed as far more cost-effective than punitive approaches. All these programs place a great emphasis on involving youth, plus their families and neighbors, in shaping solutions. The core values of the juvenile-justice ideal continue to live. Like the reform impulse of a century ago, the goal is to commit the juvenile-justice system to pursuing the best interests of the child, to strengthening family and community solutions to youth misconduct, and to emphasizing humane and fair treatment of the young.
In spite of the promise embodied in approaches like these, unlawful and brutal practices continue to plague youth correctional facilities in many states. Some jurisdictions are being investigated by the federal government for statutory and constitutional violations of the rights of institutionalized minors. In other locales, advocates for young people are successfully litigating against youth detention and corrections facilities. At the same time, the political hysteria surrounding the super-predator myth appears to be in remission. The chorus is growing to reject approaches such as youth correctional boot camps or “scared straight” programs that use prison visits to try to frighten youngsters away from criminal lives. While some of these dangerous programs continue to exist, many jurisdictions have shut them down. There is growing awareness about the prevalence of mental illness among institutionalized youngsters and the emergence of several initiatives to better meet their health-care needs.
This year’s most positive development was the Supreme Court’s decision to end the death penalty for those younger than 18 at the time of their offense. But this progress does not minimize the severe problems of the juvenile-justice system. Funding for services for troubled young people in the juvenile-justice and child-welfare systems remains woefully inadequate. Young people still do not have anything resembling adequate legal representation. Too many continue to be banished to the criminal-court system and languish in adult prisons. And racism, sexism, and class biases continue to tarnish the promise of equal justice for all.
The Way Forward
This American Prospect special supplement includes reports from places as diverse as California, Texas, New Mexico, Missouri, and Louisiana. All suggest that reform coalitions, often with strange bedfellows, can acknowledge the superiority of the reform approach and change practices that dehumanize young people and fail to reduce juvenile crime. By now the evidence is clear: Small, community-based approaches that stress prevention, education, and restitution rather than prison-like punishment are simply better policy. At the same time, as Ellis Cose recounts, racial disparities remain immense. And as Sam Rosenfeld reports, far too many children who need mental-health services are being dumped into the juvenile-justice system.
Given the overwhelming evidence that reform works, why is there continuing resistance? The answer to this question is complex. First and foremost, since the mid-’60s, crime policy in the United States has been heavily politicized. Democrats and Republicans have competed to position themselves as tough on crime. Being perceived as soft on juvenile offenders is considered a political liability. Second, the media continue to exaggerate the amount of violent crime committed by minors. Isolated stories about vicious crimes that are committed by very young adolescents are widely disseminated and become the grist for talk radio and other media commentary. The simplistic solution has been that tough responses to juvenile crime will deter youthful offenders.
Resistance to proven juvenile-justice models often comes from public-employee unions that fear the loss of jobs as traditional youth correctional facilities are downsized and some funding goes to community-based organizations. Also, severe state and local budget problems have led to a retrenchment in needed services, even as more innovative juvenile-justice models could actually save money. In some locales, organizations purporting to represent families of crime victims have lobbied for tougher penalties for juvenile offenders.
Progressive reforms are often undercut by entrenched biases about the predominantly poor and minority families caught up in the juvenile-justice system. These racial, ethnic, and class prejudices are too often reinforced by media reports that breed fear among the electorate about the “barbarians at the gates.” As long as economic and ﬁscal pressures fuel anxiety over immigrants, the increased competition for jobs, and the deteriorating public-school system, it will be hard to generate compassionate and rational responses for youthful lawbreakers.
Jerome Miller once observed that the history of juvenile justice reﬂects a pattern of abuse and scandal followed by humanistic changes, but then a return to the previous conditions and bad practices. In a new millennium, one can only hope that proponents of the juvenile-justice ideal can ﬁgure out how to end this tragic cycle.
* Barry Krisberg is president of the National Council on Crime and Delinquency, which is based in Oakland, California.
1. It is wrong to hold children and adolescents who have not reached legal age to adult standards. In other areas of law we recognize the differences between children and adults. Children are not permitted the same rights and responsibilities as adults (e.g. voting, smoking, joining the military) because we recognize their inability to make adult decisions. Why don't we recognize the same difference in the criminal law? We don't say, "this is a very important election, so let's let the kids vote". We don't say, "this is a very important war so let's give our children weapons and send them to fight". So why do we say "this case is different and this kid deserves to be treated as an adult and locked away in a prison"?
2. Recent research demonstrates that transferring children from juvenile court to adult court does not decrease recidivism, and in fact actually increases crime. Children are uniquely positioned for reform and redemption. Juvenile detention facilities (generally) have the programs in place to aid in that process of reformation. Prisons do not.
3. With appropriate treatment most children who commit crimes, even the most violent crimes, can be rehabilitated and become responsible adults. Precisely because their brains are still changing. The prefrontal cortex - which regulates aggression, long range planning, mental flexibility, abstract thinking, and perhaps moral judgment (See "Bower Study") has not yet developed in children. The amygdala, the center of impulsive and aggressive behavior is the center piece of the child brain and is left unchecked by the under developed prefrontal cortex.
4. Psychological research confirms what every parent knows: children, including teenagers, act more irrationally and immaturely than adults. Studies further confirm that stressful situations only heighten the risk that emotion, rather than rational thought, will guide the choices children make. The Supreme Court recognized just this! In Roper v. Simmons, Justice Kennedy wrote: "any parent knows" and "scientific and sociological studies ... tend to confirm "that children possess a "lack of maturity" .. an underdeveloped sense of responsibility .. [and take] impetuous and ill-considered actions and decisions."
5. Children in adult prisons are 5 times as likely to be sexually assaulted, twice as likely to be beaten by staff, 50 percent more likely to be attacked with a weapon and 8 times as likely to commit suicide as children in juvenile facilities.
6. Punishment is a failed a strategy for changing behavior, teaching new skills, or developing new and more positive attitudes and beliefs. The only justification for inflicting harsh punishment is to deliver vengeance in accord with the old testament standard of an eye-for-an-eye. We should be protecting, not taking out vengeance, on our children.
7. Contrary to popular belief, it is the child and not his or her parent or guardian who must decide what to tell the police and defense attorneys, whether or not to follow attorney instructions, whether to testify, whether to give information to the prosecution, and whether to go to trial or accept a plea bargain. Although common sense would suggest that many children are simply too young to undertake such weighty legal responsibilities, it is rare for courts to consider whether children lack the competence to stand trial because of their age. Every child offender should have a competency hearing before trial.
8. “Adult time for adult crime” may be a catchy phrase but it reflects a poor understanding of criminal justice principles. If the punishment is to fit the crime, both the nature of the offense and the culpability or moral responsibility of the offender must be taken into account. As the U.S. Supreme Court has repeatedly recognized, the blameworthiness of children cannot be equated with that of adults, even when they commit the same crime.
9. Youth tried in the adult criminal court face the same penalties as adults including life without parole which for child offenders puts them last in line to receive any classes or rehabilitation programs and makes it very difficult to file for clemency for failure to prove any sort of rehabilitation.
10. Statistics show a plethora of impact issues have been fueled by blended sentencing laws, including unintended consequences such as giving prosecutors, rather than judges, the authority to decide when to charge a juvenile as an adult. Policy analysts have begun questioning whether states have gone too far in enacting legislation that makes it easier to prosecute juveniles as adults.
Barbe Stamps is the founder and director of Teen Advocates USA, a children's rights educational and public advocacy website
Trying and Sentencing Youth in Adult Criminal Court
Minimum Age for Charging Youth in Adult Court
Each state determines its laws for prosecuting youth in adult court. Thus, the age at which it is permitted to charge a juvenile in adult court differs from state to state.
How Youth are Charged in Adult Court
In 47 states, youth can be charged in adult court through judicial waiver. Prosecutorial discretion/direct file can be utilized in 16 states to prosecute youth in the adult system. Twenty-nine states have statutory exclusion laws that mandate some children be charged in adult court for certain offenses.
The Facts on Transfer
Sixty-three percent of Americans believe that all youth, regardless of the crime committed, are capable of recovery and redemption. (1)
Yet, on any given day, approximately one out of 10 incarcerated youth are confined in adult facilities. (2)
Youth held in adult prisons and jails are five times more likely to be victims of attempted sexual attacks or rapes than those held in juvenile institutions. (3)
The suicide rate for juveniles in adult prisons and jails is nearly eight times higher than that for juveniles in youth detention centers. (4 )
Twenty-three states report over-representation of minority youth transferred to adult criminal court. (5)
Nationwide, nearly 60% of cases petitioned for person offenses are committed by white youth, but only 45% of such cases are transferred to adult court. For black youth, 40% of cases are petitioned for the same crimes, but 50% are transferred to adult court. (6)
(1) Peter Hart Research Associates & Public Opinion Strategies, Changing Public Attitudes toward the Criminal Justice System, Washington, DC, February 2002.
(2) Office of Juvenile Justice and Delinquency Prevention, Juvenile Offenders and Victims: 2006 National Report, Washington, DC, 2006.
(3) U.S. Department of Justice, Bureau of Justice Assistance, Juveniles in Adult Prisons and Jails, Washington, DC, October 2000.
(5) Building Blocks for Youth, And Justice for Some, Washington, DC, April 2000.