Race, juvenile justice, and mental health: new dimensions in measuring pervasive bias.

• Author: Thomas, W. John

1. INTRODUCTION

   Delinquent Children, are those, who through Ignorance, Vice, Folly, Sport Carelessness, Thoughtlessness and in a hundred other ways, violate City Ordinances, Laws, statutes or the Rights of Others, for which there must be some method of Correction.

   Defective Children, are those who are physically or mentally deficient, thereby becoming a charge upon the State, and therefore need the Protective Care of The State or Community in their misfortune; whether these physical or mental Defects are due to Heredity or otherwise, the best method of handling them is through the Juvenile Court, or one similar to it, after which they may be sent to the proper Institution, where the best care for the individual case may be given.(1)

   Almost from the moment of its inception in 1899,(2) the juvenile court has witnessed criticism of its handling of youths suffering from mental illness. Dr. William MacDonald made the point in a 1912 critique of the Connecticut juvenile justice system: "We should have a law creating a Juvenile Psychopathic Institute for Juvenile Offenders, Mental Defectives, and etc. Many of these Juvenile Offenders need the services of a good physician more than they do those of the jailor."(3)

   As soon as states had begun to address Dr. MacDonald's concern,(4) criticism turned to the disposition of juvenile criminal offenders between the criminal justice and mental health systems.(5) The research has usually taken one of two forms. Most research has compared samples from the juvenile justice and mental health systems and concluded that race is "the most striking factor distinguishing the two groups."(6) Other researchers have compared the juvenile criminal justice and mental health population with the racial distribution of the general population and found an "absence of racial bias in admission" to the mental health facilities.(7)

   Our study injects two new dimensions into the existing body of knowledge. First, it is the first study to compare only court-referred adolescents in the mental health system with those in the criminal justice system. This methodology offers a more precise measurement than that offered by all of the previous research which compared the full correctional school population with the full psychiatric hospital population. Second, the study is also the first to compare clinically-referred patients with court-referred patients in the juvenile mental health system.

   Our findings indicate that the racial profiles of the court-referred and clinically-referred juveniles in the mental health system are statistically indistinguishable. A comparison with 1990 Connecticut census data reveals that racial minorities are over-represented in both the state-operated facilities of the mental health and the juvenile justice systems.(8) The populations did, however, exhibit different psychiatric profiles. The clinically-referred were more likely to exhibit psychotic disorders while the court,referred were more likely to exhibit overt conduct disorders.(9)

   Part II of this article places our study's findings in historical and jurisprudential context by outlining the history of juvenile court, chronicling the court's involvement in the placement of adolescents in the criminal justice and mental health systems, and summarizing the courts and processes that figured in the study results. Part III provides an exposition of the existing body of knowledge on the subject. Part IV outlines our study's methods and findings and concludes with a detailed comparison of the psychiatric profiles of the clinically-referred and court-referred patients in the mental health system. Part V closes the article with a discussion of the implications of our findings for the future of the juvenile justice and mental health systems.

2. THE HISTORICAL AND JURISPRUDENTIAL CONTEXT

   A. THE ESTABLISHMENT OF THE JUVENILE COURT

   Although there are some antecedents,(10) scholars generally acknowledge that the Illinois legislature created the first juvenile court in 1899.(11) Before that year, American courts followed the English custom of subjecting juveniles over the age of fourteen to the same laws and tribunals as adults.(12) Children under the age of seven were deemed incapable of forming the intent necessary for criminal conviction.(13) Those between the ages of seven and fourteen benefited from a rebuttable presumption of incapacity to form the requisite intent.(14)

   Juveniles convicted were subject to the same penalties as adults, including incarceration in the same facilities.(15) The result, one observer unhappily reported, was the incarceration of youths guilty of what might have been termed juvenile mischief alongside hardened, adult convicts:

   In Illinois in 1897, and especially in Chicago, the condition of these classes of Juveniles was deplorable, there being in Cook County alone, over 2,000 boys in prison, for offenses such as petty thefts, disorderly conduct, killing birds, fighting, truancy, stealing rides on cars, and similar offenses; These boys were sent to Jail or Prison to work out fines from One to One Hundred Dollars and Fifty cents per day ...(16) Those bent on reform, and who became known as the originators of the Progressive Movement, argued that all convicted of crimes and especially juveniles should receive "individualization of treatment and a progressive form of prison discipline."(17) That individualized focus led to the creation of a variety of criminal justice reforms, including probation, indeterminate sentences, and parole.(18) Its Cornerstone, where juveniles were concerned, was the creation of the juvenile court.(19)

   The juvenile court was to be part of a system that removed minors from the adult criminal justice system and created programs to address the needs of "delinquent, dependent, and neglected children."(20) In large measure, this was to be accomplished through substitution of rehabilitation for punishment:

   The problem for determination by the judge is not, Has this boy or girl committed a specific wrong, but What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from his downward career.(21) The change in ideology had an immediate, dramatic impact:

   The results, to give it briefly was [sic] as follows, after but a year and a half of operations under the new law, The District Attorney reported that instead of between two and three hundred cases of boys being brought before the Grand Jury, there were only ten or twelve such cases; and the Jailor reported that instead of Six Hundred boys at the Jail under Sixteen, there were only about twenty ...(22) Apparently impressed with these results and the aims of the Progressive Movement, all but two states had established juvenile courts by 1925 and all states did so by 1945.(23) Guided by a positivist view of crime,(24) the reformers viewed delinquency as determined by the juvenile's environment and, instead of attempting to punish immoral behavior, crafted a system of justice that emphasized inquiry into the accused's background rather than the facts of the specific crime alleged.(25) As a result, the jurisdiction of the juvenile courts came to encompass "status" offenses such as truancy, smoking, and other immoral activity that the state viewed as worrisome, but which did not constitute crimes.(26) Concomitantly, the disposition did not need to be related to the severity of the offense, but could be fashioned to serve the juvenile's best interests.(27)

   Although championed by its creators as "one of the greatest advances in child welfare that has ever occurred,"(28) the juvenile court came to be criticized by two groups. The first--the "legal moralists"--viewed the expansion of jurisdiction over children as an illicit attempt to increase the state's control over them.(29) Moreover, these critics contended, jurisdiction had been expanded to control not only specific acts, but specific classes of children.

   It was not by accident that the behavior selected for penalizing by the child savers--drinking, begging, roaming the streets, frequenting dance-halls and movies, fighting, sexuality, staying out late at night, and incorrigibility--was primarily attributable to the children of lower-class migrant and immigrant families.(30)

   The second group the "Constitutionalists"--focused on the process the courts employed rather than the acts and children that they addressed.(31) Because the courts addressed the "best interests" of the juveniles who came before them, they did not employ procedural safeguards such as the rights to an impartial heating, to counsel, and to the privilege against self incrimination. As a result, contended these critics, the courts employed arbitrary procedures that unconstitutionally deprived juveniles of liberty.(32) This fact, asserted one critic in 1914, was not "changed by refusing to call it punishment or because the good of the child is stated to be the object."(33)

   In its 1967 decision in In re Gault,(34) the Supreme Court sided with the Constitutionalists and, in doing so, ushered in a juvenile court system that conformed more closely to the views of the legal moralists. The Court first observed that the discretion that courts employed in the Progressive tradition of serving the juvenile's best interests was "a poor substitute for principle and procedure."(35) That principle and procedure, the Court held, entailed attaching constitutional safeguards such as the rights to counsel, to an impartial hearing, to confront and cross-examine witnesses, and the privilege against self incrimination to the heating at which a juvenile is adjudicated a delinquent.(36) In essence, the Court shifted the inquiry of the proceeding from serving the juvenile's "best interests" to proof of the alleged crime.

   In the years following Gault, the Court ruled that other elements of the adult criminal defendant's battery of constitutional rights, including the...