What to do with the sheep in wolf's clothing: the role of rhetoric and reality about youth offenders in the constructive dismantling of the juvenile justice system.

• Author: Coupet, Sacha M.

Why is it not just and proper to treat these juvenile offenders, as we deal with the neglected children, as a wise and merciful father handles his own child whose errors are not discovered by the authorities? Why is it not the duty of the state, instead of asking merely whether a boy or a girl has committed a specific offense, to find out what he is, physically, mentally, morally, and then if it learns that he is treading the path that leads to criminality, to take him in charge, not so much to punish as to reform, not to degrade but to uplift, not to crush but to develop, not to make him a criminal but a worthy citizen.(1)

INTRODUCTION

In October 1998, at the close of the 105th Congress, Senator Patrick Leahy, lamenting the failure of the Senate to pass juvenile crime legislation, urged the majority leader to make this issue one of the top legislative priorities in the 106th Congress.(2) For better or for worse, he got his wish. In the immediate wake of the April 1999 shooting in Littleton, Colorado,(3) the Senate and the House of Representatives abruptly began to draft extensive juvenile justice reform measures.(4) The massacre at Columbine High School was one of the worst episodes of school violence in U.S. history, and it, along with a number of other killings by juveniles,(5) confirmed the public's worst fears and dire predictions concerning juvenile crime. For the federal government, as it was for forty-seven states and the District of Columbia between 1992 and 1997,(6) juvenile justice was once again at the top of the legislative agenda.(7) The ongoing debate concerning juvenile justice reform at both the national and state levels is but another chapter in the saga of an adjudicative arena that has been in flux since its inception in 1899.(8) Now, as the United States marks the 100th anniversary of the creation of a separate system to address the actions of young offenders, debate on how best to respond to juvenile crime continues. At the extreme, abolitionists(9) call for its demise, favoring instead the trial of juveniles in adult criminal courts with sentences mitigated by age or other offender variables.(10) Reformers propose altering the system, sometimes beyond recognition, through "get tough" measures including increasing the use of transfer waivers to try children in adult court, lowering the minimum age for transfers, increasing the use of detention and incarceration, and limiting confidentiality and expungement privileges.(11) In the dawn of the new millennium, the juvenile justice system may have taken a step back into the nineteenth century. Current juvenile reform measures that move greater numbers of juvenile offenders into adult criminal court, with increasingly punitive sanctions for juveniles, harken back to pre-1890, when children were tried in the same courts of law as adults and received similar forms of punishment served in the same adult penal institutions, houses of refuge, or other correctional facilities.(12) At that time, beyond the common law's substantive infancy defense that only relieved children under the age of seven of culpability, "neither statute nor court decision provided for treating children charged with crimes differently from adults, substantively or procedurally."(13)

Reformers in the early juvenile court movement constituted a group of advocates who, understanding the needs and circumstances of young offenders, pressed for the development of an entirely separate adjudicative system that rested on the notion that "juveniles are different."(14) Those reformers uniformly favored rehabilitation and treatment over punishment as the most effective means of dealing with juvenile delinquents.(15) Today, the most vocal group of reformers call for increasingly more punitive measures that threaten to put juvenile offenders on par with adult criminals. These reformers' successful legislative efforts have nearly drowned out the call of those who press for innovative rehabilitative and preventive programs. The dominant theme of contemporary juvenile justice reform indeed strikes a different note from the traditional wholly rehabilitative philosophy of the original juvenile court.(16) A drive to punish young offenders for their supposed increasingly violent behavior has guided reform measures over the past three decades and has steered the juvenile justice system from rehabilitative to retributive aims.(17) The general public's concern about perceived increases in youth criminal activity "bolster policies to repress rather than rehabilitate young of fenders."(18) Despite the fact that "many knowledgeable criminologists have seen little evidence of a profound difference in the rate of serious crime among adolescents over the past thirty years,"(19) rhetoric about explosions in juvenile crime rates and "a coming wave of juvenile `superpredators'" continues to fuel the public's hysteria.(20) Rather than educating their constituents about the complex nature of youth crime and the juvenile justice system's limited ability to reduce it, "politicians propose simplistic `get tough' policies and pander to people's fears."(21) Even in the face of valid social science research indicating that a retributive "[just desserts" response--a core tenet of the adult criminal system--is not the most effective long-term intervention to reduce or prevent juvenile crime,(22) the reform rhetoric is replete with calls for retribution, punishment, and confinement.(23)

Part I of this Comment addresses the historical origins of the juvenile justice system, highlighting the goals and original intent of this adjudicative system: to be sensitive to the needs and capacities of children. Part II examines state and federal juvenile crime legislation spurred by "get tough" rhetoric and its actual and potential effects on juvenile crime. Part III analyzes the role that public perception has played in creating a cyclical response to juvenile delinquency throughout history. It also examines sources of information and misinformation relied upon by "get tough" reformers, and presents empirical social science evidence that both debunks "get tough" rhetoric and also supports alternatives to incarceration. Part IV presents a model of restorative justice as an alternative to purely retributive or purely rehabilitative aims.

1. HISTORICAL ORIGINS OF THE JUVENILE JUSTICE SYSTEM

   1. Parens Patriae

      The earliest development of the child welfare system, prior to the juvenile justice model, was based on the patens patriae doctrine. This concept generally refers to the role of the state as the custodian of persons who suffer from some form of legal disability. It authorizes the state to substitute and enforce its judgment about what it believes to be in the best interests of the persons who presumably are unable to take care of themselves. The patens patriae doctrine "refers traditionally to [the] role of [the] state as sovereign and guardian of persons under a legal disability ... [and focuses on] the principle that the state must care for those who cannot take care of themselves."(24) This doctrine provides the basis for state laws that protect, rather than punish, citizens.

      Although the patens patriae doctrine was initially used to protect the interests of minors, establish guardianships, or provide for the involuntary commitment of the mentally ill, it was rarely invoked to take control of or confine persons who had not committed a crime. In 1838, however, the Pennsylvania Supreme Court expanded the use of the patens patriae doctrine to detain a minor for the purposes of reform and rehabilitation in Ex parte Crouse.(25) Although she was not found guilty of any crime, Mary Ann Crouse was committed to the Philadelphia House of Refuge based upon her mother's complaint that she was beyond her control.(26)

      Despite the habeas corpus petition and Sixth Amendment challenge regarding Mary Ann's right to trial by jury filed on her behalf by her father, Mary Ann was incarcerated and detained. Basing its holding on the patens patriae doctrine, the Pennsylvania Supreme Court stated that the Constitution did not protect a minor from being confined against his or her wishes because the goal of detention was reformation and rehabilitation, not punishment. The court reasoned that there was no prohibition on restraints imposed for a child's own welfare.(27) Crouse was the first reported case in which confinement for the protection, not punishment, of minors was justified by a best interests rationale and the power invested in the state by virtue of the patens patriae doctrine.(28) Moreover, Crouse became the precedent for upholding juvenile commitments without the legal formalities and due process protections of a criminal trial.(29)

      Sixty years passed before the protection versus punishment justification for juvenile confinement prompted the creation of an entirely separate system for juvenile offenders. The patens patriae doctrine that originated in English chancery courts provided a theoretical justification for nonpunitive, yet coercive, intervention in the lives of children and families.(30) By applying the parens patriae doctrine to children and adolescents who had committed acts that, were they adults, would be considered criminal, judges were given broad discretion to take "up the burden of parenthood and [stand] between all children and the manifest dangers of parental laxness and urban temptation."(31) Rehabilitation, over punishment, was intended to resemble the way in which a benevolent parent would care for his or her own child and to protect the child from the vices of crime.

      In the context of demographic, social, and economic changes of the early nineteenth century, the social construction of childhood was "institutionalized ... as a period of dependency and exclusion from the adult world."(32) Reformers regarded dependent, neglected, and especially delinquent youth as malleable objects requiring protection from...