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Child or Adult? - A Century Long View

The century old idea in the United States that children and adolescents are less culpable and more able to be rehabilitated than adults who commit crimes has been giving way to a harsher view in recent years. Here's an overview of the evolution of society's attitudes on dealing with juveniles who commit serious crimes.

In 18th century America, little distinction was made in the criminal culpability of children versus adults. Juveniles as young as age seven could be tried and sentenced in criminal courts. As psychologists and sociologists began to recognize the emerging notion of adolescence as a developmentally distinct period of life, reformers argued that children should be removed from adult prisons.

In 1825, the Society for the Prevention of Juvenile Delinquency founded the New York House of Refuge, the first institution designed to accommodate juvenile delinquents. Many cities and states soon followed this example and set up similar institutions. Progressive era reformers wanted to attack what they believed were the roots of juvenile delinquency--a lack of moral education and standards--and advocated that juvenile institutions include a significant educational and rehabilitative component. For their efforts, the earliest juvenile justice reformers were known as "child savers."

The child savers' advocacy resulted in the establishment of the first juvenile court in Cook County, Illinois, in 1899. The court was established under the British legal doctrine of parens patriae -- "the State as parent" -- which was interpreted to mean that it was the state's duty not only to protect the public interest in juvenile offender cases, but also to intervene and serve as the guardian of the interests of the children involved. As opposed to the adversarial adult criminal system, where the state's role was to prosecute the offender, the juvenile court had a more benevolent mission: it was designed to be flexible, informal and to tailor to a juvenile's individual needs, with the ultimate goal of rehabilitation. The process was subject to strict confidentiality in order to avoid any unnecessary stigmatization of minors. Because its goal of rehabilitation was not considered to be punitive, the court had no due process protections, and had jurisdiction over both criminal and status offenders (a category which applies only to minors and includes offenses such as vagrancy and truancy.) Judges played a paternal role, and were afforded tremendous discretion in order to achieve the goal of individualized rehabilitative justice. By 1925, 48 states had established a juvenile court system, which operated quietly until mid-century.

During the 1960s, civil libertarians began to raise concerns about the progressive era model of juvenile justice. They argued that despite rhetoric to the contrary, juveniles within the system were not actually being rehabilitated, but rather warehoused in institutions not much different from an adult prisons. If juveniles were going to be treated as adults in the sentencing phase, the advocates argued, they should also be accorded the due process protections afforded to adults in court. They also challenged the broad discretion given to juvenile court judges. In a series of rulings during the 1960s and 1970s, The U.S. Supreme Court agreed; "There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children," wrote Justice Abe Fortas in Kent v. United States. In decisions such as Kent, In re Gault and In re Winship, the Supreme Court ruled that juveniles must be afforded due process protections including: formal hearings when facing waiver to criminal court; protection against self-incrimination; the rights to notice of charges, counsel, and cross-examination of witnesses; and adherence to the "proof beyond a reasonable doubt" judicial standard.

In the early 1970s, several class-action lawsuits attacked the conditions and policies of the juvenile institutions, alleging cruel and unusual punishment. Social critics advocated deinstitutionalization and argued for more preventative and community-based programs to assail the roots of juvenile delinquency, particularly in urban areas. In 1974, Congress passed the Juvenile Justice and Delinquency Prevention Act, which still governs the juvenile justice system today. The act required the separation of juvenile offenders from adult offenders, and the deinstitutionalization of status offenders. A 1980 amendment mandated that juveniles could not be placed in adult jails, with a few exceptions. The 1974 act also created the federal Office of Juvenile Justice and Delinquency Prevention (OJJDP) and offered grants to encourage states to develop community-based programs as alternatives to institutionalization. Law enforcement experimented with the introduction of community-based correctional facilities, such as group homes and halfway houses.

However, this preventative approach to the delinquency problem was shortlived. In the mid-1970s, as the media began to highlight rising violent crime rates, the American public demanded the conservative "get tough" approach to crime still widely endorsed today. State legislatures reacted to the public's demands for accountability by passing more punitive juvenile justice laws. The conservative trend continued in the 1990s: almost every state passed laws making it easier to try juveniles in adult criminal courts; 31 states passed laws expanding sentencing options; 47 states modified confidentiality provisions for juvenile courts; and 22 states passed laws increasing the victim's role in juvenile court processing.

More than any time in recent history, the system is turning back toward treating juvenile offenders like adults.

sources

Bernard, Thomas J. The Cycle of Juvenile Justice. New York: Oxford UP, 1992.

Krisberg, Barry and Austin, James F. Reinventing Juvenile Justice. Newbury Park, CA: Sage, 1993.

Guarino-Ghezzi, Susan and Loughran, Edward J. Balancing Juvenile Justice. New Brunswick, NJ: Transaction, 1996.

Office of Juvenile Justice and Delinquency Prevention. "Juvenile Justice: A Century of Change." Washington DC: Office of Juvenile Justice, 1999.

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