Getting smart about getting tough: juvenile justice and the possibility of progressive reform.

• Author: O'Connor, Jennifer M.

1. INTRODUCTION II. HISTORY OF THE JUVENILE JUSTICE SYSTEM: FROM SALVATION TO PUNISHMENT III. THE CURRENT DEBATE IV. THE CURRENT STATE: WHERE THE SYSTEM STANDS V. GETTING TOUGH: CURRENT REFORM VI. ALTERNATIVES TO WAIVER

   1. Juvenile Correctional Facilities.

   2. Traditional Alternatives

      1. Boot Camp

      2. Restitution

      3. Wilderness Challenges

      4. Intensive Supervision

   3. Hybrid Approaches

      1. Florida Environmental Institute's Last Chance Ranch

      2. Department of Justice Violent Juvenile Offender Program

      3. Serious Violent Juvenile Offender Project

      4. Systemic Alternatives: Small Facility Networks VII. REFORM: PROPOSALS AND SOLUTIONS VIII. POLITICAL REALITY: IS REFORM POSSIBLE? IX. POLITICAL STRATEGY FOR REFORM X. CONCLUSION

1. INTRODUCTION

   Delinquency is a community problem. In the final analysis the means for

   its prevention and control must be built into the fabric of community life.

   This can happen only if the community accepts its share of responsibility

   for having generated and perpetuated paths of socialization that lead to

   sporadic criminal episodes for some youths and careers in crime for

   others.(1)

   The problem of serious, chronic, and violent juvenile offenders(2) arises at the nexus of numerous social welfare issues because these youths tend to grow up in environments in which both family structures and opportunity structures have deteriorated.(3) Poverty, inadequate housing, inadequate education, racism, child abuse, teen pregnancy, drug addiction, alcoholism, and endless other social ills can push youths onto paths of violent and criminal behavior.(4) Eradicating juvenile crime without addressing its relationship to these other issues is an impossibility.

   Any juvenile justice system, then, must be looked at within this social context. Precisely because the problem of juvenile crime is directly related to these other issues, the juvenile justice system cannot eradicate juvenile crime independently. It serves as an escape hatch to deal with the most problematic juveniles without resolving the broader social problems that cause their behavior. Society makes value judgments about what level of juvenile crime is tolerable, what level of recidivism is acceptable, and at what point society is willing to give up on youths and lock them in secure facilities, considering in the balance the public's willingness to bear the costs of eliminating other related social problems.(5)

   Thus, the juvenile justice system acts as a compromise at some level between rehabilitation and punishment, treatment and custody. It pursues two different models as it seeks to protect both the juvenile offenders, as victims of social disintegration, and the citizens against whom juveniles offend.(6) By nature, such a system combines social services and criminal justice, acting as a welfare agency to protect the best interests of the youths within its custody and as a legal authority to punish and control juveniles' deviant behavior.(7) This duality creates an internal inconsistency, as protecting juvenile offenders directly conflicts with public protection from the offenders' violent behavior.(8)

   Historically, the juvenile justice system in the United States has struggled with this inconsistency by using rehabilitative and punitive treatments to balance the system's competing goals. The balance between rehabilitation and punishment has shifted numerous times, representing changes in the political climate. Perceived increases or decreases in crime rates affect the rhetoric of public debate and influence the political infrastructure to favor one model over the other.(9) Currently, public debate has moved the balance heavily toward the punitive side of a continuum that runs from pure treatment to pure punishment.(10) In recent years, some legislatures have endorsed a more punitive model of juvenile justice without adopting corresponding rehabilitative or treatment elements.(11) By shifting to this more punitive model, the political process has moved toward a strategy that consistently has been ineffective in reducing juvenile crime.(12)

   This Note argues that progressive reform is required to regain a fair balance between rehabilitation and punishment. The shift away from rehabilitation weakens the juvenile justice system's ability to enable juvenile offenders to take responsibility for themselves and to protect them as victims of an imperfect society. Although shifting away from protecting offenders may resolve the internal inconsistency of the system itself, it fails to respect the broader balance between the societal cost of eradicating social welfare problems and society's willingness to tolerate some level of juvenile crime. The punitive model permits society to punish youths for society's own failure in solving social welfare problems.

   Progressive reform, as defined herein, seeks to establish an equilibrium between rehabilitation and punishment through the creation of a comprehensive system that emphasizes both. Punishment and rehabilitation are not inherently inconsistent goals within the context of juvenile justice; these two goals can be made consistent through progressive reform measures, such as immediate interventions, intermediate sanctions, small facilities, intensive rehabilitation, and community-based confinement. For the vast majority of offenders, a balanced system is more cost effective than a system emphasizing either extreme. A balanced system preserves scarce societal resources by limiting the scope of the most costly treatments to those most in need of them.(13) Such a system also is more effective in reducing recidivism over the long term because it provides comprehensive and consistent dispositions of offenders.(14)

   This Note discusses a model of progressive reform of juvenile justice systems and the political possibility of such reform at the state level. Part II provides a broad overview of the historical development of the juvenile justice system. The current debate about the role of the juvenile justice system is discussed in Part III and is then contrasted to the reality of the current system in Part IV. Part V discusses the current reforms taking place generally throughout the juvenile justice system, and Part VI explains alternative reform measures. In Part VII, the various measures for reform are explained and a comprehensive approach is proposed. Finally, Part VIII and Part IX discuss the political reality that interferes with the reform process and a strategy for overcoming that reality.

2. HISTORY OF THE JUVENILE JUSTICE SYSTEM: FROM SALVATION TO PUNISHMENT

   Historically, youths have held a special status in the law, distinct from that of adults.(15) The emergence of the current juvenile justice system in the United States, however, began with the rise in urbanization and industrialization in the late nineteenth century.(16) American society generally, and Progressive-Era(17) reformers specifically, became more concerned with protecting youths in the work force and educating indigent youths than with punishing their wrong doing.(18) Believing that poor environment rather than willful behavior caused delinquency, these reformers pushed for a rehabilitative model of handling delinquent youths.(19)

   The rehabilitative model removed the processing of youths from adult courts, in the belief that a separate court system could provide youths with greater protection.(20) This new court acted under the doctrine of parents patriae,(21) where the state acted in the best interests of the juvenile, seeking to reform the youth while protecting society.(22) The system promoted individualized treatment of delinquents, attempting to rehabilitate them by correcting the mental and moral deficiencies in their characters.(23)

   Over time, however, the actual function of the juvenile courts fell short of these aims.(24) Initially premised on individualized treatment for each offender, the system soon moved toward aggregate treatment as it became overburdened by growing numbers of juvenile offenders.(25) As the system took on a factory-like approach to dispositions, youths would pass through the system numerous times with little more than a slap on the wrist.(26) Juvenile justice systems lacked resources to implement effective, individualized treatment programs. Instead, offenders were placed in large congregate institutions that provided little treatment, if any. Youths were placed in these facilities for periods ranging from weeks to years, and the treatment or response was not tailored to the severity of the crime.(27) Moreover, these facilities provided no follow-up treatment to prevent recidivism, and instead released offenders into the community without guidance.(28)

   By the 1960s, the discrepancy between the rehabilitative rhetoric and the mass-production reality of these systems had become obvious. The Supreme Court reacted to this discrepancy by recognizing constitutional protections in the juvenile justice system.(29) In In re Gault,(30) the Court mandated procedural safeguards for juveniles, finding that the actual function of the juvenile courts differed from the ideological premise of parents patriae because it no longer prescribed treatment on an individualized basis.(31) By mandating due process rights for juveniles, the Court unintentionally necessitated a formalization of juvenile court proceedings.(32) With the imposition of formal safeguards, juvenile courts explicitly connected crime and punishment to their proceedings.(33) The focus on punishment diminished the importance of individualized disposition by pushing the system away from rehabilitation.(34)

   Two major developments occurred in the years following Gault: labeling theory came to the forefront of the movement to reform juvenile justice;(35) and, more importantly, several states, most notably Massachusetts, began full-scale restructuring of their juvenile justice systems.(36) Under both developments, minor offenders were diverted from the juvenile justice...