By The Honorable Luis G. Perez
Throughout history, societies have struggled to find the proper way to deal with juvenile criminality and with problems of child abandonment, abuse, and neglect at the hands of adults.
In the 19th century, the United States began to move toward important social reforms which ultimately brought many changes in the ways these problems were addressed. Various states enacted child labor laws protecting children from harsh working conditions, child welfare laws protecting children from physical abuse and abandonment by parents, and education laws that guaranteed the right of all children to a public education.
However, there was no separate and unique juvenile court system for children anywhere in the United States. Children accused of criminal behavior were charged and judged as adults, and they were sentenced to adult punishments. In that era there were no juvenile proceedings and children were tried in conventional criminal trials. So it was that in1828, a 12-year-old boy named James Guild was tried in New Jersey for killing Catharine Beakes. A jury found him guilty of murder, and he was sentenced to death by hanging. (See In Re Gault 387 U.S. 81 State vs. Guild 5 Halst. 163)
Early Juvenile Justice
Early American reformers were appalled by the application of adult procedures and penalties given to children, and by the fact that many children received long prison sentences and were incarcerated alongside hardened adult criminals. They were profoundly convinced that society's duty to the child should not be defined by preexisting concepts of justice that had developed in relation to adult criminality.
They believed that society's role was not simply to ascertain whether the child was "guilty" or "innocent" but rather "what is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career." (In Re Gault 387 U.S. 16, Julian Mack, The Juvenile Court, 23 Hars. L. Rev. 104, 119-120 (1909))
It was not until April 1899 that the state of Illinois established the first juvenile court in the United States. This innovative juvenile court system served as a nationwide model that ultimately came to be adopted, in varying degrees, by every state in the United States, as well as the District of Columbia and Puerto Rico.
In the beginning, a more humane, flexible civil system was adopted by many states, in place of a harsh, punishment-driven criminal justice system as applied to children. The idea of crime and punishment as the guiding principle of the juvenile justice system was to be rejected. Instead, the child was to be "trusted" and "rehabilitated," and the legal procedures from apprehension through institutionalization were to be informed by clinical rather than punitive concerns. Insofar as possible, these results were to be achieved by non-adversarial proceedings where the state was to proceed as in loco parentis (In Re Gault 387 U.S. at 16 Paulson, Fairness to the Juvenile Offender, 41 Minn. L. Rev 547 (1957)), that is, the state was considered to act in place of the parent, with the welfare and care of the child as its paramount concerns.
Who Is a Child?
Today, the United States does not have a unique and comprehensive juvenile justice system. On the contrary, there are at least 52 separate and distinct systems in this country. Although states look at and are influenced by what other states are doing, each state has the prerogative to develop and implement a juvenile justice system reflecting its own traditions, needs, and customs. Many states recognized that there was a fundamental distinction to be drawn within the system between the laws aimed at protecting children from abuse, neglect, and abandonment, and the laws designed to treat delinquent behavior.
A great deal of debate has transpired in each state in defining who is a child. For example, at one time, a child under the age of seven was broadly considered to be incapable of possessing criminal intent. Today, the line that separates children from adults may differ from state to state, and indeed may differ from context to context within the same jurisdiction. An obvious example of this would be a state in which a young person is competent to enter into a contract at age 18, but not able to purchase alcohol until age 21. Every state has enacted its own laws defining who is a juvenile and who is an adult for the purpose of applying the criminal laws.
In Massachusetts, for example, a juvenile delinquent is defined as "a child between seven and 17 who violates any city ordinance or town by-law or who commits any offense against a law of the commonwealth" -- unless the defendant is charged with first or second-degree murder, in which case a 14-year old must be treated as an adult. This sort of anomaly illustrates how some states have lowered the age at which a defendant will be considered an adult as a response to a perceived rise in the rate or severity of violent juvenile crime. This is a political response. There is no logical or clinical reason to explain in the above example why the same defendant should be treated as a child when accused of robbery and an adult when accused of murder.
The U.S. juvenile court system has changed dramatically since its inception in 1899. In the 1950s and 1960s, experts observed a tendency toward more violent criminality among juvenile offenders. The juvenile system was challenged as to its effectiveness. States responded by instituting prevention and rehabilitation programs as well as by imposing stricter punitive measures in order to curb the rise in juvenile violence. Some states changed their procedures to permit a juvenile to be transferred to an adult penal institution after an adjudication of delinquency in the juvenile court. In some other states, the juvenile could be transferred to the adult court at an earlier stage in the proceedings for trial as an adult.
In the landmark case of Kent vs. United States, 383 U.S. 541 1966, the Supreme Court wrote "there is much evidence that some juvenile courts lack the personnel, facilities, and techniques to perform adequately as representatives of the state in parens patriae capacity, at least with respect to children charged with law violations." Two years later in the 1968 decision In Re Gault, the Supreme Court dramatically changed the rules governing juvenile procedures throughout the United States. The Court ruled that certain minimum standards of due process applied to juvenile delinquency proceedings. Such proceedings, which had sometimes been highly informal and flexible, were transformed into more formal, adversarial proceedings designed to protect the basic constitutional rights of defendants. Gone were the days of unsworn testimony and the absence of transcripts or recordings of the proceedings.
Now, the right to notice of charges, the right to counsel, the right to confront and cross-examine witnesses, the privilege against self-incrimination, the right to a transcript, and the right to appellate review were extended to juveniles as they had already been guaranteed to adults. As Paul S. Lehman observed in "A Juvenile's Right to Counsel In a Delinquency Hearing," in Juvenile Court Judges Journal, "Unfortunately, loose procedures, high-handed methods and crowded court calendars either singly or in combination, all too often, have resulted in depriving some juveniles of fundamental rights."
Reforms and New Ideas
In the 1970s and 1980s attention was increasingly focused on the effectiveness of state juvenile justice systems in the treatment and rehabilitation of juveniles. At the same time, there was growing awareness of the dangers associated with treating violent juvenile offenders in the same programs and facilities as victims of neglect or abuse, or so-called "status offenders," i.e., truants, runaways or wayward children.
Much debate took place around the country and some new ideas gained momentum. Reforms included the segregation of defendants in delinquency proceedings from children involved in other sorts of court proceedings at all phases of their involvement with the juvenile justice system, including post-adjudicative rehabilitation. A range of smaller, specialized programs were developed and implemented in order to give judges a menu of options from which to choose in ordering placements of children. The goal was generally to meet children's individual rehabilitative needs in the least restrictive appropriate setting in the community. Children were no longer to be warehoused in large, dilapidated, overcrowded, ill-equipped treatment facilities.
But eventually a backlash developed to this new approach, prompted by a few notorious cases that turned the media spotlight onto the juvenile justice system. Every component of the system -- treatment and program facilities, juvenile courts, police, politicians, and parents -- all were subject to scrutiny and criticism. The impression was often created among the public that juvenile murderers, rapists, sex offenders, and other violent youths were being released to the community without having suffered any concrete consequences for their actions.
For example, in 1989, a 15-year-old Massachusetts boy convicted as a juvenile for the murder of his parents and grandparents was released to the community only three years after the crime. He had been detained in a treatment facility until the maximum age allowed by law -- 19. The local community became outraged.
In response to public outcry against perceived leniency and ineffectiveness in the juvenile justice system, state legislatures throughout the United States changed their laws to make them tougher on juvenile crime. Many states shifted power and authority from juvenile courts toward the adult criminal justice system by reverting to the ancient expedient of treating broader categories of juvenile offenders as adults.
If we look at the history of the American juvenile justice system from its inception in the late 19th century until the present, we can discern a pattern of transformation which in certain respects appears to have come full circle. In the beginning, many states instituted juvenile courts as a means of eliminating the participation of children in an adult legal system, which was viewed as harsh and inappropriate to the special needs of young people, and replacing it with a more humane, flexible, and informal system based on civil law, rather than criminal law.
This noble idea met with varying degrees of success as it was put into practice over the ensuing decades. Many of the reform movement's goals were achieved, and the American public will probably never have a full appreciation of the hundreds of thousands of troubled young people who were quietly and successfully reintegrated as productive members of society over the years. On the other hand, the system also produced some notorious failures in grappling with an increase in the most extreme instances of juvenile violence during the second half of the last century, leading to heightened scrutiny of the system by the media, the public, and politicians.
This public scrutiny has led many states to cut back on the promise that the juvenile court had originally represented, either by limiting access to juvenile court through adjustments to eligibility requirements, or by fundamentally altering the philosophy that had underlain the system. It is certainly fair to say that the typical state juvenile court system today is more sanction-driven (primarily interested in punishment as opposed to rehabilitation) than it was a generation ago. This is particularly unfortunate insofar as far-reaching changes to the law have sometimes been made in response to particular cases that received massive, frenzied, media attention, precisely because of their atypicality.
Complex and Challenging World
It is a truism that our world is becoming more complex and challenging. Illegal drugs, guns, gang activity, and violence are only some of the problems that have become commonplace threats to the quality of life in many communities in the United States -- not only the inner cities. Every state has had to reconsider and adjust its approach to the problem of juvenile delinquency and related issues.
During the1990s, the political pendulum swung a couple more times: in the early part of the decade some states developed crime prevention strategies based on collaborative efforts within communities; these embodied what we might call the "It Takes a Village" philosophy, to borrow a phrase from former First Lady Hillary Clinton. Proponents of this model sought to enlist the cooperation of leaders throughout a given community -- city and town officials; police officers; court officials; as well as prominent religious, charitable, and educational figures -- in a holistic effort to develop and implement programs designed to identify youth who were at risk of getting caught up in the toils of the juvenile justice system. The idea was to intervene early enough to prevent this from happening. Such collaborative efforts were often quite successful. Yet toward the end of the decade, several highly sensational cases of violent crimes committed by juveniles were given wide play in the media, and the resulting public outcry pushed many state legislatures into a reaction against perceived laxity in the juvenile justice system once again. On balance, by the end of the decade the "eye for an eye" philosophy had had a greater impact than "It Takes a Village" ideals on the state of juvenile justice around the nation. (Robert W. Drowns and Karen M. Hess. Juvenile Justice, 3rd ed. Belmont, CA : Wadsworth, c2000)
Juvenile Justice at a Crossroads
The juvenile justice system is at a crossroads as we progress into the 21st century. The social and political consensus that sustained the system as we know it for a century appears to be unraveling. We will witness continued modifications to the juvenile justice system in the years to come. Recent trends raise the question of whether the reformers will retain some of the compassion for young people that was such an impetus to the creation of a separate juvenile justice system in the first place.
To be effective, the system will require that sufficient resources be devoted to fulfill the mission assigned to it. Juvenile courts must have appropriate power and authority, sufficient trained personnel, and adequate facilities to meet their obligations and responsibilities.
Since 1984, there has been a 68 percent increase in juvenile court filings nationwide. Since 1987, juveniles detained and committed to state institutions have risen from approximately 90,000 to 400,000 in 2002. The system is plagued by overcrowding and understaffing in courtrooms, treatment programs and detention facilities. Failure to invest in children now -- and at the earliest point of intervention possible -- may entail high costs later in increased crime and social decay. It costs each state approximately $6,000 per year to educate a child. Yet it costs a state over $30,000 per year to detain a child in a residential facility (including prison). It appears cost-effective to invest in early intervention to prevent children from reaching the point where the state must detain them away from their families.
Pressing social problems like juvenile crime cannot be solved by the courts alone, acting, as it were, in a vacuum. There must be an active collaboration among multiple elements in communities and governments: political, educational, and religious leaders; civic organizations; law enforcement agencies; and others. This requires that leaders stop blaming one another, stop acting chiefly in response to sensationalist crime reporting in the mass media, and start working together more purposefully to solve a critical complex of issues affecting young people and society at large.
Judge Luis G. Perez is a judge in the Worcester Juvenile Court in Worcester, Massachusetts. He has been recognized for his innovative techniques in working with juvenile offenders, specifically gang members. Judge Perez is also a former professor of juvenile law, and has traveled through Latin American, lecturing on that topic.