The debate over the future of juvenile courts: can we reach consensus?

• Author: Geraghty, Thomas F.
• Position: Symposium on the Future of the Juvenile Court

1. INTRODUCTION

   In 1999 we will observe the centennial of the first juvenile court. It was founded in Chicago, Illinois by a group of reformers in reaction to the deprivation and abuse suffered by children in the adult criminal justice system.(1) These reformers believed that children and adolescents were fundamentally different from adults, and that non-penal environments were necessary for most delinquent children in order to steer them to productive and crime-free lives. The founders of the Illinois juvenile Court were more concerned about the nature of the services provided to delinquent, neglected, and abused children than they were about the new juvenile court's procedural fairness.(2) The burgeoning influence of the social sciences, which gave hope that children's lives could be changed for the better through enlightened social service interventions, influenced these reformers and motivated them to develop a separate system for treating adolescent offenders.(3) Within a few years, the juvenile court movement spread throughout the country, and separate juvenile court systems were established in every state.(4)

   As the juvenile court approaches its 100th birthday, however, its future is less secure than at any point in its history. Recent increases in juvenile violent crime,(5) including historic increases in juvenile homicides,(6) have led politicians to "reform" the court by passing laws which minimize the court's jurisdiction, including a new wave of laws that transfer more juveniles, at younger ages, into the adult criminal court,system.(7) In most cases, these youthful offenders, once transferred, are treated no differently from adults.(8) In fact, "reforms" in the sentencing of adult offenders, like mandatory minimum sentencing and "truth-in-sentencing," have made it increasingly common for youthful offenders to receive long incarcerative sentences in adult correctional facilities.(9) In this rush to punish and incapacitate youthful offenders, policy makers have given less and less weight to the developmental perspective that led to the creation of separate courts and treatment interventions for juveniles and adults.(10)

   The four articles in this issue of the Journal of Criminal Law and Criminology revisit the court's roots in developmental psychology, debate the extent to which adolescents differ from adults, and probe whether those differences continue to validate the underlying justification for the juvenile court. Although the authors have different visions of the future of juvenile justice, all four reaffirm the basic notion that most juveniles, because of their developmental differences, are less responsible for their actions than adults and should be punished differently from adults who commit the same criminal acts. This common sense notion--which should be obvious to anyone who has teenage children or can remember her own adolescence--provides the most compelling defense for maintaining separate justice systems for juveniles and adults.

   The four articles in this Symposium present differing proposals about how our society should deal with children who commit crimes. The articles capture the, range of questions and alternatives that scholars, practitioners, and policy makers are now considering when mapping the future of juvenile justice.(11) To what extent should we distinguish between the moral and criminal responsibility of children and adults? How should those differences play out in our juvenile and criminal justice systems? Should the juvenile court's delinquency jurisdiction be abolished because of its inability to achieve justice and because of the unfairness inherent in the court's judicial license to treat one child differently from another? Should the juvenile court be abolished because of the failure of its treatment and penal programs? Or, should the existing juvenile justice model be retained precisely because it, as opposed to the more formal criminal court, retains the flexibility to be responsive to the special developmental needs of children? These questions are at the heart of the debate over the future of the juvenile court. The authors of the four articles featured in this Symposium attempt to answer these questions.

2. THE ARTICLES

   Professor Stephen Morse would rest reform of the juvenile justice and criminal justice systems on the answer to one question: to what extent should young people be held responsible for their criminal activity? Morse argues that we should not delude ourselves--a "robust" theory of responsibility would result in most juveniles (mid-to-late adolescents) being held fully responsible for their actions.(12) He argues that research demonstrates that it is often difficult to distinguish between the moral responsibility of children and young adults. If this is true, why should the responsibility of a juvenile be less than that of a psychologically similarly situated young adult? Moreover, youth susceptibility to peer pressure does not justify differential allocation of responsibility.

   Although juveniles may lack "the capacity for empathy ... a component of normative competence,"(13) many adults may also lack this characteristic. Should we treat all persons who lack empathy the same, the result being that some adults would be the beneficiaries of an "empathy" excuse? According to Morse, the youth factor of poor judgment is not a moral excuse, but should be taken into account in more flexible sentencing schemes which recognize an optimum degree of responsibility based upon developmental variables and a young person's amenability to treatment.(14) However, since classification of offenders is difficult, "and we are seldom sure about what works specifically for whom the various therapeutic interventions that might be tried ... [t]he disposition of partially responsible adolescents thus presents a gargantuan dilemma."(15) The solution? "Perhaps the best we can do is some legislatively mandated reduction in punishment for all partially responsible adolescents,"(16) a proposal that is mirrored in Professor Feld's suggestion that a "youth discount"(17) be provided to the children who, under his proposal, would no longer be tried in juvenile court.

   The value of Professor Morse's work is that it forces us to examine a basic premise of juvenile court: that children are "morally" different from adults in their decision making capabilities. Having discussed the issue, and finding that there are differences, but not perhaps as pronounced as defenders of juvenile courts might like us to believe, Professor Morse acknowledges that creating sensible legislative responses to the dilemma he identifies "will not be a simple task."(18)

   Professor Barry Feld's proposal is much more explicit and concrete. He renews his previous call for abolition of the Juvenile court(19) and argues for the recognition of youthfulness as a mitigating factor in sentencing youthful offenders in criminal court.(20) Abolition of the juvenile court is necessary because changes in the court's jurisdiction, purpose, and procedures since its inception have transformed the court from its "original model as a social service agency into a deficient second-rate criminal court that provides people with neither positive treatment nor criminal procedural justice."(21) According to Feld, the juvenile court's problems cannot be remedied by simply increasing resources for rehabilitation or refining treatment techniques. The "very idea" of a court that...