PUNISHING TO PROTECT? BALANCING PUNISHMENT AND FUTURE WELFARE IN THE JUVENILE COURT

Published date28 April 2005
Date28 April 2005
DOIhttps://doi.org/10.1016/S1521-6136(04)06010-5
Pages185-202
AuthorAaron Kupchik
PUNISHING TO PROTECT? BALANCING
PUNISHMENT AND FUTURE WELFARE
IN THE JUVENILE COURT
Aaron Kupchik
ABSTRACT
Contemporary juvenile courts in the U.S. simultaneously pursue two poten-
tially contradictory goals: helping children who lack blameworthiness, and
punishing young criminal offenders. In this chapter I explore how juvenile
court decision-makers balance these competing concerns. I find that court-
room interactionproduces a negotiated order that allows the consideration of
both goals, through three strategies: (1) prosecutors convince judges to pun-
ish juveniles in order to protect them; (2) defense attorneys invoke treatment
as a bargaining chip to elicit compromise from prosecutors and persuade
judges to help juveniles; and (3) judges simultaneously consider both future
welfare and punishment. These three methods of balancing competing con-
cerns are shaped by the shared understandings and professional obligations
of court actors.
Contemporary juvenile courts in the U.S. pursue two potentially contradictory
goals: to mend the deficiencies of children who lack blameworthiness,and to punish
young criminal offenders (Emerson, 1969; Feld, 1999; Singer, 1996). Choosing
between these two goals often requires court decision-makers to decide between
rehabilitative programs that are intended to treat wayward youth, and punishment
Ethnographies of Law and Social Control
Sociology of Crime, Law and Deviance, Volume6, 185–202
Copyright © 2005 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1521-6136/doi:10.1016/S1521-6136(04)06010-5
185
186 AARON KUPCHIK
(such as incarceration) designed to deter offending and protect the public (Morris
& McIsaac, 1978; Parker et al., 1981). Given recent scholarship on the “punitive
turn” (Hallsworth, 2000) or the “culture of control” (Garland, 2001) that has led
contemporary justice systems to increasingly value punishment, one might expect
that contemporary juvenile courts forsake defendants’ future welfare for a more
punitive mission. Yet the assumption that juvenile court decision-makers value
punishment over treatment presumes that the rhetoric of treatment on which the
initial juvenile court was based has little bearing on contemporary juvenile courts,
which may or may not be true.
In this chapter I analyze ethnographic data to explore how juvenile court
decision-makers balance these potentially competing concerns: punishment and
future welfare. To explore the resolution of this tension I examine:(1) the profes-
sional obligations and roles of defense attorneys, prosecutors and judges; and (2)
the negotiated order that arises from the interaction between these decision-makers.
I demonstrate how this negotiated order is shaped by the particular institutional
features of juvenile courts, and how it allows decision-makers to pursue both pun-
ishment and future welfare for juvenile offenders.
BACKGROUND OF THE TENSION BETWEEN
WELFARE AND PUNISHMENT IN JUVENILE COURT
The Initial Juvenile Court
According to its founders, the first juvenile court was created to uplift wayward
youth through treatment and counseling (Tuthill, 1900). This court originated in
Chicago in 1899, and was framed as an almost exclusively welfare-oriented insti-
tution. The Progressive-era founders of the court claimed to be creating a system
that recognized the malleability of youth and the reduced culpability among ju-
venile offenders. They argued that children were only delinquent due to external,
fixable problems such as poverty, and that a parental style of intervention could
help solve these problems and rehabilitate individual youth. The offender and his
or her needs were claimed to be more important than the circumstances of the of-
fense or the need for punishment. Thus the court used a parens patriae orientation
to intervene in the lives of youth in order to improve the youth’s future welfare
(Rothman, 1980; Ryerson, 1978).
Yet scholars have described the history and mission of the juvenile court as
a more punitive institution than its founders claimed. Anthony Platt (1977), for
example, describes the juvenile court as a system of class-based social control
designed to control lower-class and immigrant youth and prepare them for factory

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