DISRUPTING INJUSTICE: FIFTY YEARS POST MIRANDA AND GAULT: A CALL TO ACTION TO RE-EXAMINE THE RIGHTS OF CHILDREN IN CONFLICT WITH THE LAW.

• Jurisdiction: United States
• Author: Clarke, Elizabeth E.
• Date: 22 September 2017

1. INTRODUCTION

   Over a century ago, progressive reformers set up the first juvenile court in Chicago. The original juvenile court model was rapidly copied across the United States and the world. Since its origin, advancements in fundamental concepts of children's rights have rapidly enhanced the court in most developed nations. Outside the United States, these advancements have been rooted in the vibrant international consensus around the human rights of children in conflict with the law. Within the United States, advancements have been more limited and rooted in the science of brain development and United States constitutional interpretation. The result is a dramatic diminution of children's rights in the United States, with a concurrent increase in incarceration, adult prosecutions, and lengthy adult sentences for children--results that are directly contrary to the vision of the founders of the original court and shock the conscience of the rest of the developed world.

   Fifty years ago, there was a resurgence of debates around the meaning of justice in the United States, resulting in two seminal opinions from the United States Supreme Court--Miranda v. Arizona (1) in 1966, and In re Gault (2) in 1967. Together, these opinions determined a broader scope of due process protections for children in conflict with the law. Many of these fundamental protections served as guidelines for subsequent international protections in the Convention on the Rights of the Child ("CRC"). (3) Yet, today the United States falls short of the basic protections envisioned in Miranda and Gault and declines to follow the more sweeping fundamental human rights embodied in the Convention on the Rights of the Child. In light of the fifty-year anniversaries of the Miranda and Gault decisions, this article will examine the development and current status of the rights of children in conflict with the law in the United States. (4) This note will also discuss the development of rights outside the United States.(5)

2. ILLINOIS: HOME OF THE WORLD'S FIRST JUVENILE COURT

   The world's first juvenile court was established in Cook County, Illinois in 1899. The court was established after a vigorous progressive movement in Chicago demanded more protections for children, placing restrictions on child labor, and establishing mandatory public education. The purpose of the court was to remove children from adult jails and courts and give them a second chance. "The establishment in 1899 of the world's first juvenile court was founded on the assumption that children were qualitatively and developmentally different from adults, had a unique set of needs, and should not be locked up alongside adults." (6) Judge Richard Tuthill, one of the first practitioners in the court, clarifies the intent by stating, "[k]indness and love for the children must be used in this work if we would hope to receive the benefits from which so much is expected." (7)

   Professsor David Tanenhaus stated that the juvenile court is "the most-copied legal innovation in our nation's legal history. Every industrialized democracy has a juvenile court today." (8) The juvenile court was swiftly copied because the court's early founders had extensive collaborations with progressives in England and in Europe. (9) The founders were also part of the worldwide development of reforms including the German concept of kindergarten, mandatory public education, and child labor restrictions--all of which worked to improve and safeguard childhood. (10)

3. JUVENILE JUSTICE FOR YOUNG ADULTS

   The early juvenile court was a generous system, extending to young adults as well as juveniles. As early as 1914, a court, known as the "Boys' Court," was set up to address the treatment of "juvenile adults." (11) The court had jurisdiction over young people charged with misdemeanors up to age twenty-one. (12) It also had preliminary hearing jurisdiction over all felony cases. (13) Judge Charles F. McKinley described the court by stating:

   For a period of eight months during 1920 and 1921, I presided over this court and day after day watched a never-ending procession of boys passing before me. There were boys charged with brutal or serious crimes; boys charged with lesser misdemeanors; boys intolerant of parental or public command; and boys adrift from home and friends--the flotsam of a great city. And often the question came to me: "Whose is the Fault?" (14) One of the strengths of the Juvenile-Adults' Court was the "active presence of social personnel [which] in itself did much to socialize court practice." (15) Judicial discretion was broad--judges, who generally had a firm belief in the "plasticity" of young people, frequently requested that first offenders charged with felony offenses be rebooked with a misdemeanor charge to retain jurisdiction over the case. (16) At least through the progressive era--up through the twenties--it appeared the emerging adults "had appreciably better odds in the Boys Court than in the other criminal branches." (17) The Juvenile-Adults' Court continued in operation until 1969. (18)

   Between the 1960's and today, United States society underwent a sea of change in the approach to justice. As the National Academy of Sciences documented in the report on the Growth of Incarceration in the United States, after decades of stability with relatively stable incarceration numbers from the 1920's until the 1970's, in the last four decades the United States quadrupled the number of people incarcerated. (19) Because of this historic and unprecedented escalation of prosecution and incarceration, today the juvenile court's promise of a second, third, or fourth chance is an empty promise for many children caught in the court's clutches.

4. PRESENT SUCCESSES AND FAILURES OF THE UNITED STATES JUVENILE COURT

   The home of the world's first juvenile court is a good example of both its successes and its failures. Thousands of children are diverted from court, thanks to the well-established principle that children are different from adults and deserve a second chance. (20) In 2013, the Juvenile Justice Initiative reported that seventy-five percent of juvenile arrests in Cook County never go to court. (21) The diversionary power of Illinois police to deal with cases through adjustments that may include requirements of counseling, restitution, or community service is a strength directly rooted in the fundamental philosophy of the juvenile court of rehabilitation. Research documents that this power has proved highly successful for more than a century, and that the majority of arrests are never petitioned to court. (22)

   However, the profound racial and economic disparity in the children prosecuted and sentenced reveals the failures juvenile courts. In Chicago, children who are prosecuted are overwhelmingly composed of racial minorities from impoverished zip codes. A review of the population in the Juvenile Detention Center in Cook County, as of December 2016, revealed both the good and the bad. There were 253 children in detention centers--down from 800, or nearly two-thirds--three decades ago, but 99% (all but three children) were black/brown or classified as "other." (23) The zip codes that send the most children to detention are among the poorest centers of the city, and they are the housing deserts, the school deserts, the health care deserts, and the job deserts. (24) The profound racial disparity in prosecution and incarceration of black and brown children across the United States reveals both the failure of our nation's safety net and the prejudice in our justice system.

5. SEMINAL PERIODS IN UNITED STATES JUVENILE JUSTICE

   Following the advent of the juvenile court, the United States' juvenile justice system reflected society's shifting views toward young people. In the 1930s, the challenges from the massive economic depression were reflected in the juvenile justice system's harsh portrayal of youth as "gangsters." Harsh racial injustice was portrayed in cases such as the Scottsboro Boys, the nine African American teenagers who drew international attention after they were sentenced to death by all white jurors. (25) Also during this decade, one-fifth of all persons incarcerated were teenage boys. (26) The death penalty was also used against juveniles. (27) In Chicago, "[i]n the early 1930's, conservative critics such as the businessmen-reformers of the Chicago Crime Commission would assault the Boys' Court as an egregious example of the dangerous leniency that maudlin feminine sentimentality had brought to criminal justice during the Progressive Era." (28)

   A shift occurred in the 1940s. (29) As young men were needed in the war effort, it is reasonable to assume the system focused on prevention to minimize criminal records that might prevent young men from serving in the military. The nation was urged to develop programs to provide constructive outlets for the energy of the young, including opening schools after hours for use as neighborhood social centers. (30) The country was even encouraged to give young people an opportunity to participate in the affairs of the nation by fostering discussions of current events. (31)

   This generous, progressive mood culminated in the 1960s with key United States Supreme Court rulings that extended fundamental rights and due process protections for juveniles. The mood, however, began to shift again in the 1970s when society became more punitive in response to young people's active participation in democratic civil society debates over civil rights and the war in Vietnam. In 1974, the federal Juvenile Justice and Delinquency Prevent Act was passed. (32) Additionally, from 1972 to 2012, there was a four-fold increase in incarceration in the United States. (33) Illinois went from 7,936 adults in prison in the 1970s to over 46,000 today. (34) Many states, including Illinois, expanded laws to prosecute and sentence children in adult court. (35)

   In order to understand how...