Abolish the juvenile court: youthfulness, criminal responsibility, and sentencing policy.

Author:Feld, Barry C.
Position:Symposium on the Future of the Juvenile Court

    Within the past three decades, judicial decisions, legislative amendments, and administrative changes have transformed the juvenile court from a nominally rehabilitative social welfare agency into a scaled-down, second-class criminal court for young people.(1) These reforms have converted the historical ideal of the juvenile court as a social welfare institution into a penal system that provides young offenders with neither therapy nor justice. The substantive and procedural convergence between juvenile and criminal courts eliminates virtually all of the conceptual and operational differences in strategies of criminal social control for youths and adults. No compelling reasons exist to maintain separate from an adult criminal court, a punitive juvenile court whose only remaining distinctions are its persisting procedural deficiencies. Rather, states should abolish juvenile courts' delinquency jurisdiction and, formally recognize youthfulness as a mitigating factor in the sentencing of younger criminal offenders. Such a policy would provide younger offenders with substantive protections comparable to those afforded by juvenile courts, assure greater procedural regularity in the determination of guilt, and avoid the disjunctions in social control caused by maintaining two duplicative and inconsistent criminal justice systems.

    My proposal focuses only on the criminal delinquency jurisdiction of juvenile courts because youth crime and violence provide the impetus for most of the current public anxiety and political responses.(2) First, this article will describe briefly the transformation of the juvenile court from a social welfare agency into a deficient criminal court. Second, it will analyze the inherent and irreconcilable contradictions between attempting to combine social welfare and penal social control in the juvenile court. Finally, once a state separates social welfare from criminal social control, no role remains for a separate juvenile court for delinquency matters. Rather, a state could try all offenders in one integrated criminal court, albeit with modifications to respond to the youthfulness of younger defendants. Adolescent developmental psychology, criminal law jurisprudence, and sentencing policy provide rationale to formally recognize youthfulness as a mitigating factor when sentencing younger offenders. Moreover, the uncoupling of social welfare from criminal social control also suggests a social policy agenda more responsive to the needs of youth than the current version of the juvenile court.

    In Part II, I briefly analyze the social history of the juvenile court and its subsequent constitutional domestication. I argue that in the three decades since Gault, legal changes have altered juvenile courts' procedures, jurisdiction, and jurisprudence, and increasingly render juvenile courts indistinguishable from criminal courts. The convergence is reflected in the decriminalization of status offenders, the criminalization of serious offenders via waiver to the criminal courts, and the increased punitiveness in sentencing of ordinary delinquents. Despite juvenile courts' increasing and explicit punitiveness, however, they still provide delinquents with fewer and less adequate procedural safeguards than those available to criminal defendants. In Part III, I argue that the juvenile court's deficiencies reflect a fundamental flaw in its conception rather than simply a century-long failure of implementation. The juvenile court attempts to combine social welfare and criminal social control in one institution, but inevitably subordinates the former to the latter because of its inherent penal orientation.

    In Part IV, I propose to abolish the juvenile court and to formally recognize youthfulness as a mitigating factor in criminal sentencing, thereby accommodating the lesser culpability of younger offenders. Young offenders differ from adults in their breadth of experience, temporal perspective, willingness to take risks, maturity of judgment, and susceptibility to peer influences. These generic and developmental characteristics of adolescence affect their opportunity to learn to be responsible and to develop fully a capacity for self-control and provide a compelling rationale for mitigation of sentences. I propose an explicit, age-based "youth discount," a sliding scale of developmental and criminal responsibility, as the appropriate sentencing policy mechanism to implement the lesser culpability of younger offenders.

    Finally, I suggest a number of benefits that may accrue from a formal recognition of youthfulness as a mitigating factor in an integrated criminal justice system--enhanced protection of the many younger offenders already being sentenced as adults, an affirmation of responsibility, integration of records, and a more consistent sentencing policy toward chronic younger offenders, and, ultimately, honesty about the reality of criminal social control in the juvenile court.



      Many analysts have examined the social history of the juvenile court.(3) Ideological changes in cultural conceptions of children and in strategies of social control during the nineteenth century led to the creation of the juvenile court in 1899.(4) The juvenile court reform movement removed children from the adult criminal justice and corrections systems, provided them with individualized treatment in a separate system, and substituted a scientific and preventative alternative to the criminal law's punitive policies. By separating children from adults and providing a rehabilitative alternative to punishment, juvenile courts rejected both the criminal law's jurisprudence and its procedural safeguards such as juries and lawyers. judges conducted confidential and private hearings, limited public access to court proceedings and court records, employed a euphemistic vocabulary to minimize stigma, and adjudicated youths to be delinquent rather than convicted them of crimes. Under the guise of parens patriae, the juvenile court emphasized treatment, supervision, and control rather than punishment. The juvenile court's "rehabilitative ideal" envisioned a specialized judge trained in social science and child development whose empathic qualities and insight would enable her to make individualized therapeutic dispositions in the "best interests" of the child. Reformers pursued benevolent goals, individualized their solicitude, and maximized discretion to provide flexibility in diagnosis and treatment of the "whole child." They regarded a child's crimes primarily as a symptom of her "real needs," and consequently the nature of the offense affected neither the degree nor the duration of intervention. Rather, juvenile court judges imposed indeterminate and non-proportional sentences that potentially continued for the duration of minority. Progressives used a variety of state agencies to "Americanize" immigrants and the poor; from its inception, juvenile courts provided a coercive mechanism to discriminate between "our" children and "other peoples' children"--those from other ethnic backgrounds, cultures, and classes.(5)

      Progressives situated the juvenile court on a number of cultural and criminological fault-lines and institutionalized several binary conceptions for the respective justice systems: either child or adult, either determinism or free will, either treatment or punishment, either procedural informality or formality, either discretion or the rule of law. Serious youth crime challenges these dichotomous constructs. The recent procedural and substantive convergence between juvenile and criminal courts represent efforts to modify the Progressives' bifurcation between these competing conceptions of children and crime control.


      In In re Gault,(6) the Supreme Court began to transform the juvenile court into a very different institution than the Progressives contemplated. In Gault, the Supreme Court engrafted some formal procedures at trial onto the juvenile court's individualized treatment sentencing schema.(7) Although the Court did not intend its decisions to alter juvenile courts' therapeutic mission, in the aftermath of Gault, judicial, legislative, and administrative changes have fostered a procedural and substantive convergence with adult criminal courts. Several subsequent Supreme Court decisions furthered the "criminalizing" of the juvenile court. In In re Winship,(8) the Court required states to prove juvenile delinquency by the criminal law's standard of proof "beyond a reasonable doubt." In Breed v. Jones,(9) the Court applied the constitutional ban on double jeopardy and posited a functional equivalence between criminal trials and delinquency proceedings.

      Gault and Winship unintentionally, but inevitably, transformed the juvenile court system from its original Progressive conception as a social welfare agency into a wholly-owned subsidiary of the criminal justice system. By emphasizing criminal procedural regularity in the determination of delinquency, the Court shifted the focus of juvenile courts from paternalistic assessments of a youth's "real needs" to proof of commission of a crime. By formalizing the connection' between criminal conduct and coercive intervention, the Court made explicit a relationship previously implicit, unacknowledged, and deliberately obscured. And, ironically, Gault and Winship's insistence on greater criminal procedural safeguards in juvenile courts may have legitimated more punitive dispositions for young offenders.

      In McKeiver v. Pennsylvania,(10) however, the Court denied to juveniles the constitutional right to jury trials in delinquency proceedings and halted the extension of full procedural parity with adult criminal prosecutions. Without elaborating upon or analyzing the distinctions, McKeiver relied upon the...

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