No Longer a Child: Juvenile Incarceration in America

• Author: Charlyn Bohland
• Position: Will receive her J.D. from Capital University Law School in May 2011
• Pages: 193-229

NO LONGER A CHILD:

JUVENILE INCARCERATION IN AMERICA

CHARLYN BOHLAND*

I. INTRODUCTION

Across this country, thousands of children are dressed in orange

jumpsuits, caged in isolation, separated from their families and

communities, and horrifically victimized by those entrusted with their

care—all in the name of juvenile justice. In the United States‘ juvenile

justice system, judges are tasked with the responsibility of preventing

future crime and effectively doling out justice to America‘s youngest

offenders.1 Case after case and child after child, these judges continuously

choose incarceration in adult-like facilities as the means to rehabilitate

children who have committed crimes.2 Imprisonment is not the answer

because there are other options.3 There are facilities and programs that

provide care and guidance; support and strength; potential for growth and a

crime free future; and options that show children that even though they

have done a bad deed, they are not bad people.4

The first section of this note provides a brief history of the juvenile

justice system including its creation, changes since its inception, and the

modern practices of the juvenile court. This section discusses the original

and modern goals of juvenile justice, the differences between juveniles and

adults, and the need to treat juveniles differently and separately from

adults.

The second section of this note details how juvenile institutionalization

in the United States is not accomplishing the mission set forth for juvenile

justice. Specifically, this section focuses on the crises in juvenile

correctional facilities, highlighted by the problems in California (California

Copyright © 2011, Charlyn Bohland.

* Charlyn Bohland will receive her J.D. from Capital University Law School in May

2011. She received her B.A. in Political Science from The University of Akron in May

2008. The author would like to thank Chief Counsel Jill Beeler and the other attorneys in

the Juvenile Division o f the Ohio Public Defender‘s Office for their talent, experience, and

commitment to helping incarcerated children.

1 Je ffrey A. Butts & Adele V. Harrell, Delinquents or Criminals: Policy Options for

Young Offenders, 1998 URB. INST. 2.

2 See id. at 6.

3 See discussion infra Part IV.

4 See discussion infra Part IV.

194 CAPITAL UNIVERSITY LAW REVIEW [39:193

Youth Authority), Louisiana (Louisiana Department of Public Safety and

Corrections, Youth Services, Office of Juvenile Justice), New York (New

York Office of Children and Family Services), Ohio (Ohio Department of

Youth Services), and Texas (Texas Youth Commission). Investigations in

these states show countless illegal practices and procedures. These states

provide good examples of the problems that plague juvenile correctional

facilities across the country.

Finally, the last section of this note optimistically offers hope.

Research and analysis of the various issues in juvenile correctional

facilities show a real need for change, and not just with a few tweaks, but

instead with a radical step away from the culture of institutionalization and

a return to the rehabilitative roots of the juvenile justice system. Experts in

restorative justice, commissioned by the United States Department of

Justice, created a model to implement this type of change. Programs in

Missouri, New York, and California speak to the success of restoration and

the feasibility of implementation.

II. BRIEF HISTORY OF THE JUVENILE JUSTICE SYSTEM

During the eighteenth century, there was little difference in the way

children and adults were treated in the court system.5 In fact, children as

young as seven could be sentenced in adult courts.6

In 1825, the Society for the Prevention of Juvenile Delinquency started

the idea that it was in the best interests of children to be separated from

adults, especially when children were being placed in institutions.7 These

reformers created unique facilities for troubled juvenile offenders,8 which

often included educational and rehabilitative components to combat the

lack of morality—the believed root of juvenile crime.9 However, these

juvenile facilities were often condemned for juvenile abuse.10

By the late nineteenth century, the notion that children are not just

small adults became more common.11 Ultimately, the realization that

5 Child or Adult? A Centur y Long View, FRONTLINE, http://www.pbs.org/wgbh/pages/

frontline/shows/juvenile/stats/childadult.html (last visited Sept. 15, 2010).

6 Id.

7 Thomas J. Bernard, Introduction to SERIOUS DELINQUENCY: AN ANTHOLOGY 3, 4

(Thomas J. Bernard ed., 2006).

8 See Dialogue on Youth and Justice, 2007 A.B.A. DIV. PUB. EDUC. 5.

9 Child or Adult?, supra note 5.

10 Bernard, supra note 7, at 4.

11 Barry Krisberg, Reforming Juvenile Justice, THE AMERIC AN PROSPECT, Sept. 2005, at

A2, available a t http://www.prospect.org/cs/articles?articleId=10120.

2011] NO LONGER A CHILD 195

putting children in adult prisons did not rehabilitate, but instead created the

next generation of criminals, led to the creation of a separate juvenile court

system.12

A. Creation of the Juvenile Court

The first juvenile court was established in Cook County (Chicago),

Illinois in 1899.13 By 1910, thirty-two states had juvenile courts, and by

1925, almost all states had juvenile courts.14 These courts relied on the

doctrine of parens patriae to allow state officials to act as guardians for

children and to make decisions regarding the best interests of children

when they came before the court. 15

These early juvenile courts had a benevolent mission—to save and

protect children.16 The courts sought to help children ―in trouble through

treatment rather than punishment.‖17 Specifically, these courts wanted to

be flexible, informal, focus on individual needs, rehabilitate, and maintain

confidentiality.18 Highlighting the rehabilitative drive of juvenile courts,

Denver, Colorado Judge Ben Lindsey ―preached the virtues of community

treatment, probation, and a juvenile court fueled by optimistic compassion‖

for children in need.19

1. Due Process Safeguar ds

From the 1950s through the 1960s, the juvenile justice system stayed

true to its mission because juvenile courts focused on rehabilitation.

However, there was a concern that children were being held indefinitely

without due process safeguards.20 Juvenile courts were never meant to

punish, and as such, children were not initially afforded due process

12 Id.

13 MARTHA DEITCH ET AL., FROM TIME OUT TO HARD TIME: YOUNG CHILDREN IN THE

ADULT CRIMINAL JUS TICE SYSTEM 5 (2009); Child or Adult?, supra note 5; Dialogue on

Youth and Justice, supr a note 8, at 5.

14 Bernard, supra note 7, at 5; Dia logue on Youth and Justice, supra note 8, at 5.

15 FRANKLIN E. ZIMRING, AMERICAN JUVENILE JUSTICE 5–6 (2005). A child is

dependent on supervision in order to survive. Id. When parents fail to protect their

children, the state must step in and make decisions in accordance with the best interests of

the child. Id.

16 Id. at 7.

17 DEITCH ET AL., supra note 13, at 6.

18 Child or Adult?, supra note 5.

19 ZIMRING, supra note 15, at 9.

20 Bernard, supra note 7, at 6.