Big Themes in the Juvenile Justice System


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Juvenile Justice, Professor James Jacobs

Fall 2006

Big Themes in the Juvenile Justice System:

  1. Justifications for different procedures and dispositions for Juveniles:

    1. Rehabilitation

      1. Gault questioned whether the Juvenile Justice System was really rehabilitative

    2. Juveniles Have Less Liberty Anyway, since they are controlled by parents; or they are always in some custody- be it parent, teacher or state

    3. Consequences of juvenile system are less severe than adult system, so justifies less procedural rights

    4. Parents Patriae- State as protector

    5. Equal Protection not violated, because juveniles not similarly situated. Also age does not trigger strict scrutiny.

  2. Arguments that juveniles should have some rights as adults:

    1. Engender juveniles with sense of justice

    2. In reality, consequences of adult court and juvenile court similar; so rights should be similar

      1. Help prevent stigma and bad consequences of detention

      2. Juvenile detention as bad as adult prison

  3. Rights adult have that Juveniles don’t have:

    1. Constitutional right to bail

    2. Right to jury trial (McKeiver)

  4. Argument for less Juvenile culpability:

    1. Social/Biological Juveniles are less developed, less culpable for actions. (See Roper).

    2. Feld, p. 646 argues that since youth don’t have as much control over their actions they are less culpable and should get less punishment. He notes youth are more likely to have poor risk assessment and prone to peer influence.
  5. Should we abolish the juvenile court? Has the juvenile court gotten so close to the adult court that its worthless to have another system?

History and Purpose of Juvenile Justice, p. 1-47

  1. History:

    1. Before the Progressive Movement, Kids seen as mini-adults, No Separate court for Juveniles: Before the 19th Centur, juveniles under the age of seven were never charged with crimes, and juveniles above 14 were treated completely as adults. Children 7-14 were either not prosecuted or treated as mini-adults. In general, children were thought of as mini adults.

    2. The Progressive Movement, saw kids as kids, and brought about juvenile court: The progressive movement envisioned kids as kids, and older kids as developing adolescents. The progressives moved for Juvenile courts that focused on reform and not punishment. (See Ainsworth, p.12 which connects the general idea of adolescence with the Juvenile Court movement).

      1. Progressive Movement saw state as a parent figure- parens patriae: In theory under progressive movement, kids were not liable for crimes. However, the state actually controlled many aspects of a Juvenile Delinquent’s life- for example their sentences were often indeterminate.
      2. Progressive Movement aimed to focus on Rehabilitation not punishment: Mack, “The Juvenile court”, 1909, p. 7: Describes the progressive ideal with the state as the parent. Emphasizes the juvenile system is concerned with rehabilitation and not as much punishment. One of the most influential descriptions of the Progressive conception of the Juvenile Court which was embodied in the Illinois Juvenile Court Act. This Act was the first of many that established Juvenile Courts all around the United States.

    3. Juvenile Delinquency laws get tougher in the 1980s: These laws expanded the eligibility of juveniles to be tried as adults. They also expanded sentencing options. On the privacy side, juvenile procedures were opened up.

    4. The SuperPredator Idea 1989-1994: In 1989 Juvenile crime spiked and it continued to increase until 1994. This was very unsettling politically and socially. There was enormous fear, an even the idea of a superpredator- the idea that there would be a lot of superpredator juvenile offenders to whom crime was a way of life.

      1. A lot of this new crime was linked to guns and the popularity of crack at the time.

    5. Crime Levels dropped after 1994: After 1994, crime began to decreased rapidly. A big drop of crime has happened by 2006. The violent crime rate has also dropped dramatically across all age croups including Juvenile crime. Right now there is not a panicked state about juvenile crime. The fear of the superpredator was not substantiated.

  2. Justifications for the Juvenile Justice System:
    1. Diversion, Zimring, Diversion in Juvenile Justice, p. 40: Zimring argues there is a divisionary goal of Juvenile justice that existed when Juvenile Courts first started (1900s) and exists today. The diversion goal is to save Juveniles from the savagery of the regular system, for example, save them from the stigma of being convicted.

      1. If the goal of the Juvenile system was diversion, it has been pretty successful. Even though there was an expansion of incarceration and “hard on crime” in the adult system between 1970s-1980s, the Juvenile system was shielded from some of that.

    2. Interventionism:
      Interventionism is another justification of the Juvenile system- Interventionist system looks at the positive good that can come from intervening in a Juvenile’s life. It focuses on the rehabilitation side, like new programs to help children rehabilitate. This may be a more powerful justification because it is positive and motivating, However some question if Intervention works.

  3. THE SEMINAL CASE- GAULT: Juvenile Justice System isn’t living up to It’s Goals of Rehabiliation, In actuality its similar to the adult punishment system THUS procedural requirements for the Juvenile system are needed: In re Gault, U.S. 1967, p.20, Facts: In this case, a kid was put in an Institution and given a sentence in Juvenile court without the procedural safeguards that would happen in an adult court. Holding:

    1. Progressive movement had goal of rehabilitation: The court notes that historically juveniles were denied rights under the Progressive movement idea that saw the state as parental figure. The idea of the state as parents, parens patriae, was used to deny juveniles procedural rights.
    2. The court uses sociological data to attack the envisionment of the juvenile system as rehabiliative, saying that in reality the juvenile justice system isn’t really helping juveniles. For example institutions although called institutions instead of jails still curtail freedom and are similar to jails. And Juveniles including Gault might get more time for the same crime as an adult. The court looked passed the formalism, and what the Juvenile system is supposed to be on the books, and looks at what it is in reality.

      1. Legal realism analysis not applied to other institutions like mental hospitals. The court has not been inconsistent in applying its legal realism analysis. For example, in Addington v. Texas, U.S. 1979, the Court decided that it is okay to civilly commit a person to a mental hospital according to a preponderance of the evidence standard instead of by the beyond a reasonable doubt standard. The court in Addington is much more formalistic- they said that being kept in a mental hospital is not punishment it is not treatment. They chose not to use realism analysis and apply it to mental hospitals.

      2. Can the court judge the real world? The Professor’s one big criticism about this is realism is whether a court is good and understanding what is happening in the real world. Are the court so confident they know what is going on in the states?

    3. The court said that the lack of procedural safeguards are actually turning the juvenile system into a kangaroo court.

    4. Given the system, the court held: all “fundamentally fair” due process rights given to an adult must be given to Juveniles as well- this includes right to counsel, rights to notice, confrontation and right against self-incrimination.

    5. Gault the beginning of a trend toward more rights for the juveniles in juvenile courts. Gault McKeiver was only the exceptions the other way, which said that Juveniles aren’t required to receive jury trials during state delinquency trials.
    6. Can the court judge the real world? The Professor’s one big criticism about this is realism is whether a court is good and understanding what is happening in the real world. Are the court so confident they know what is going on in the states?

  4. Is the Juvenile System suffering a slow death?

    1. As time has passed, the Juvenile system has become more and more similar to adult courts.

    2. Juvenile Court’s sentencing options are being curtailed.

    3. The maximum age for Juvenile Court is being reduced from universally 19 to 17 or 16.

    4. Serious cases are more often transferred to adult court.

  5. What keeps the Juvenile Court going?

    1. Many people now have a vested interest in the Juvenile system.


  1. The definition of bully is- repeated repression, psychological or physical, of a less powerful person by a more powerful person.

  2. Motivation for Bullying: Is it an expression of dominance over another? Is it part of a group phenomenon where the bully is trying to gain social power? Bullying may be connected to the social context created by schools, like popularity and status.

  3. When Bullying happens: Bullying often happens at school at times and places where the is little or not adult supervision.

  4. Who are the targets of bullies: Bullies target boys and girls equally, though most bullies are boys.

  5. Harms of bullying:

    1. Some people commit suicide because they are bullied. This is called Bully-cide.

    2. Bullying can also lead to revenge attacks- like the school shooting massacres in Colorado. FBI reported that school shooting may have happened partially cause of bullying and recommended that school take measures to reduce bullying.
    3. Also the basic harm of being tormented, and being denied childhood or adolescence.

  6. Bullying and Criminal Law.

    1. Sometimes bullying violates criminal law:

      1. Larceny or robbery- bullies may steal their victim’s stuff.

      2. Assault- some bullies physically hurt their victims.

      3. Harassment- one definition of harassment is- repeatedly harassing a person with intent to alarm or annoy a person that actually annoys or alarms a person. This definition seems to fit bullying behavior.

      4. Menacing- putting someone in fear of physical injury.

      5. Forcible Touching- touching the intimate parts of other to degrade that person or gratify their own sexual needs.

      6. Stalking, following someone and giving them reasonable fear of harm.

    2. Should law enforcement get involved in bullying? Its possible to prosecute acts of bullying a crimes. But should law enforcement get involved? Some groups are even pushing for an anti-bullying law.

  7. Policies to prevent bullying:

    1. Policies that we use near schools now:

      1. Drug-Free Zones near schools

      2. Can’t carry a gun near schools- a felony with mandatory one year punishment

      3. At some point going to police

    2. Possible other solutions can focus on the bully, the victim, or the school environment:

      1. Gun Detectors in schools

      2. Cameras in schools

      3. Surveillance

      4. Bully Courts, where peers punish bullies

      5. Educating students and teachers about bullying

Basics about Juvenile Justice System:

  1. Statutes enacting Juvenile Courts vary from state to state

  2. Juvenile Courts have Jurisdiction over:
    1. Delinquency charges- these are acts that would be crimes if an adult had committed them.

      1. Some states give juvenile courts original jurisdiction over crimes; other states give juvenile and criminal courts concurrent jurisdiction over crimes committed by Juveniles and let prosecutors select where to take charges.

    2. Status Offenses- these are laws that pertain only to Juveniles.

  • Juvenile Procedure:

    • Referral/Arrest- Police, teachers and parents make the decision on whether to refer a Juvenile to the Juvenile Justice program. Juvenile is taken into custody

      • Booking- some jurisdictions book the Juvenile, including fingerprinting, mug shot, and check against other jurisdictions.

    • Intake-

      • The Juvenile is interviewed by an intake officer- usually a social worker or a probation officer. During this interview, the intake officer gets information about the Juveniles family life and more. The intake officer then decides whether to process informally/divert or to file a petition, which keeps the Juvenile in custody and sets their case to be processed formally.

        • If a Juvenile doesn’t successfully complete a diversion program then they will be formally processed.

        • During intake, for the cases the intake officer decides to formally process, they will decide whether to recommend pre-trial detention.

    • Probable Cause Hearing/Initial Appearance

      • Petition= Same as adult Indictment/Information
      • The Juvenile must also receive a prompt probable cause hearing, but not necessarily within 48 hours. In this hearing, the judge decides whether there was probable cause for the arrest and there is probable cause that the Juvenile committed the offense. The probable cause hearing is not necessarily an adversarial hearing.

    • Detention Hearing

      • After the probable cause hearing there is a detention hearing. In this hearing, the court decides whether pre-trial detention is appropriate for the Juvenile. This hearing is adversarial, and takes into account information not only about the offense but about the Juvenile.

      • Logistically, this hearing takes more time than an adult hearing to prepare for.

    • Adjudicatory Hearing:

      • Either through Plea

      • Or through adjudicatory hearing

    • Disposition:

      • Only in 10% of the cases do Juveniles eventually receive confinement.

      • Corrections is for post-adjudication holding.

        • Juvenile corrections can hold Juveniles until age 21. However, Juveniles Courts can make blended sentences so that juvenile will be held first in corrections, then in an adult jail.

Age Issues: Minimum age of Juvenile Jurisdictions, Infancy Defense, Age of Responsibility

  1. Common Law Infancy Defense:
    1. The majority of courts reject the common law infancy defense, that presumed that 7-14 years were incapable of committing crimes: In re Tyvonne J., Conn. 1989, p. 70; Facts: An 8 year old kid shoots another kid and injures her. The defendant argues the common-law infancy defense. The common law infancy defense gave an irrebutable presumption that children under 7 were incapable of committing a crime. It presumed that kids 7-14 were incapable. And it gave an irrebutable presumption that children over 14 were capable. Holding: The common law infancy defense, that presumed children 7-14 were incapable of committing a crime, does not apply to modern day justice system that has Juvenile Courts. This holding is justified because 1) Juvenile courts are different and more rehabilitative then adult courts so kids don’t need to understand the moral implication of their acts. 2) The common law infancy defense would frustrate the rehabilitative purpose of Juvenile Court. The court also distinguishes Gault, which noted that due process is required because in reality the Juvenile system is much like the criminal system. The court says despite Gault, Juvenile Courts can justify some differential policies based on their rehabilitative goals.

    2. Minority of courts still recognize the common law infancy test and thus presume 7-14 year olds are incapable of committing crimes: In Re Gladys R., Cal. 1970, p. 75; Facts: In this case a 12 year old was placed by Juvenile court into an Institution. She argues that the common law infancy defense should apply. The question is whether the statute that created the Juvenile Court system pre-empts the common law infancy defense that presumed those under 14 were incapable of committing crimes. Holding: This court represents the minority view and rules that the common law infancy defense survived the creation of Juvenile Courts. Thus those under 14 are given the rebuttable presumption of being incapable of committing a crime, unless clear proof shows that they are capable of knowing right from wrong.
  2. Academics argue that Juveniles are less culpable for their crimes: Scott & Steinberg, Blaming Youth, p. 85; Juveniles have no coherent identity. The crimes they commit are not a reflection permanent bad character. Juvenile crime is not likely to lead to adult crime. Juveniles experiment during adolescence, and that experimentation often involves crimes, but this isn’t a reflection of their adult characters and values. Thus they are less culpable for crimes. Juveniles don’t make as good decisions as adults, they are more risky, less about long-term, and more susceptible to peer pressure. There brains are different. J crime is not usually a reflection of bad character, and not likely to lead to adult crime. This is because juveniles experiment during adolescence nd often that experiment involves crime, but this isn’t reflection of their adult character and values.

  3. Insanity Defense:

    1. Adults don’t have Constitutional right to insanity defense, though all states have insanity defense.

    2. Majority of Courts say Juveniles don’t have constitutional right to insanity defense: Commonwealth v. Chatman, Virginia 2000, p. 94; Facts: The question to the court is whether a 13 year old have a constitutional or statutory right to the insanity defense. Holding: The Constitution does not guarantee an insanity defense for adults, even though all states have one. Thus, Juveniles don’t have a constitutional right to the insanity defense.

    3. A minority of courts says there is a Constitutional right to the insanity defense. In the Interest of Causey, Lousiana 1978, p. 101, says that the 14th due process guarantee of fundamental fairness protects the fundamental right to the insanity defense.

  4. Competency Test

    1. About half of states guarantee juveniles right to competency test before trial: Golden v. State, Arkansas 2000, p. 104; Fact: Do juveniles have a Constitutional right to a competency hearing before trial? Holding: Juveniles have a fundamental right, protected by the Constitution, to a competency test by trial. This court follows Gault reasoning that Juveniles must have all fundamental due process rights.
      1. Appeals Court Requires competency test: In Tate v. State an Appeals Court remanded a case saying that a 12 year old kid who faced life imprisonment was required to have a competency evaluation before trial.

      2. Question: Are juveniles ever competent to stand trial?

Status Offenses, 123-158:

  1. Status Offense Definition: Status offenses prohibit activities that adults are nor prohibited from, based on a person status as a Juvenile.

  2. Three Types of Status Offense:

    1. Proscriptive- thou shall not do X- like drink alcohol

    2. Prescriptive- thou shall do X- like go to school

    3. Wayward- children: Wayward/Ungovernable children may not have disobeyed a specific ordinance but they could be deemed wayward or idle.

  3. Examples of status offenses:

    1. Running way

    2. Truancy

      1. Is a pervasive problem around the country and is linked to many negative things like dropping out and involvement in crime. OJDJP has made some effective programs for dealing with Juvenile delinquents that include have a case manager, and threatening parents with penalties.

    3. Status liquor violation

      1. Some say that by criminalizing alcohol until Juveniles are 21, we add to the binge drinking problem. There are also special drunk driving laws for teenagers.

    4. Curfew laws

    5. Ungovernability

      1. This status offense is defined differently by different states. Some may be vague like California’s statute that makes it a status offense to be “beyond control.” Others like Minnesota’s statue may specify the activities that are prohibited.

  4. Status Offenders Can’t get the disposition of Institutionalization: A 1974 (federal??) law says that the state can not punish status offenders by institutionalization.

    1. However, many status offenders are institutionalized after they are put on probation from their status offense and then break probation.

  5. Goal of having status offenses- protecting children from themselves: One of goals of status offenses are protecting children from selves. For example, laws preventing juvenile sex, ownership of pornography and ownership of guns. This goal raises issues of paternalism.

  6. Views on Status offenses:

    1. Some find them authoritarian an unfair way to restrict children

    2. Others think that they protect children.

  7. Status offenses are gendered: Girls are more likely to be committing a status offense when they are promiscuous. The status offense of running away is linked to promiscuity. Girls represent half of status offenders, even though they are a very small percentage of criminals. Boy status offenses are more likely to centered around violence.

    1. Some argue that having status offenses for promiscuous girls is justified since girls have the risk of getting pregnant and exploited.

  8. Courts have held morality statutes are not void for vagueness: S.S. and L.B. v. State, Maine 1973, p. 129; Facts: A statute prohibits juveniles from “living in circumstances manifesting danger of falling into vice.” Holding: Statutes preventing general immorality of juveniles is not unconstitutionally vague.
    1. A similar case is E.S.G. v. State, p. 136. A girl who was promiscuous was found to have violated the statute that prohibits activities that “endanger morals.” The Court said the Morals statute is not void for vagueness, since its not feasible to list all the ways a kid could be destructive or go beyond control.

    2. Ungovernability status offenses are the type where parents ask Juvenile Courts to do something because their children are out of control. Parents have strong rights over there kids in general. For example, parents have the right to put their kids in mental institutions without the kids permission and without going to court.

      1. Juvenile courts are moving away from enforcing broad “morality” statutes.

  9. Courts are split on whether Curfew laws are Constitutional

    1. Some courts say curfew laws don’t violate equal protection: QUTB v. Bartlett, 5th Cir. 1993, p. 142: Facts: Dallas made a curfew law. It is challenged on the grounds of equal protection. Holding: Curfews do not violate equal protection. First Age classification does not merit strict scrutiny. However the ability to move around is a fundamental right, so strict scrutiny is given. The law passes strict scrutiny: There is a compelling interest in lowering juvenile crime, and a curfew is narrowly tailred given evidence of Juvenile crimes at night and public places.

      1. Curfew laws don’t violate 4th Amendment: In Waters v. Barry, 153, the court said that curfew laws don’t violate the 4th Amendment search and seizure laws. The reason why it could be thought to, is that it gives officers probable cause to arrest Juveniles as long as they are out after curfew, and it can be used as pretext for other searches.
    2. Some courts say curfew laws are unconstitutional: In Nunez v. City of San Diego, the 9th Circuit said that the curfew law is unconstitutional because it unduly restricts minors First Amendment Rights. The court said that the ordinance isn’t narrowly tailored because it doesn’t sufficiently exempt legitimate first amendment activities from the curfew.

  10. Status Offenders are Not Required to have procedural rights Guaranteed to Delinquents: p.811-827 (skipped reading): Since being adjudicated as a person in need of supervision is not (formally speaking)a criminal-type proceeding, criminal procedure rights need not apply. However, as the materials show, this looks problematic when it is recognized that violation of the non-criminal status offender order can be prosecuted as criminal contempt and result in a delinquency finding. The materials demonstrate that at least some states try to recognize that dilemma by extending some criminal procedure type rights to status offenders.

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