The New Rehabilitation

• Author: Daniel M. Filler; Austin E. Smith
• Position: Professor of Law, The University of Alabama School of Law; LawClerk, Judge L. Scott Coogler, United States District Court for the Northern District of Alabama
• Pages: 03

Daniel M. Filler:Professor of Law, The University of Alabama School of Law. Prior to joining the faculty of the University of Alabama, the author was a public defender in Philadelphia and the Bronx. The authors wish to thank Mark Brandon, David A. Hoffman, and Alfred L. Brophy for their valuable contributions and suggestions. Thanks are also due Dean Kenneth Randall and the support of the University of Alabama Law School Foundation.

Austin E. Smith: Law Clerk, Judge L. Scott Coogler, United States District Court for the Northern District of Alabama.

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Introduction

America's century-old juvenile justice system is critically ill. This is the standard account offered by most progressive observers of the juvenile courts.¹ According to these critics, the nation has abandoned its long-term commitment to the treatment and rehabilitation of child offenders.² Indeed, the traditional narrative blames liberal hubris: the Warren Court's well- intentioned criminal-procedure revolution unwittingly undermined the unique flexibility of the juvenile courts.³ The downfall of progressive juvenile justice policy provides yet another example of the conservative political backlash to 1960s liberalism.⁴

The problem is that the story is simply not true. This Article exposes a little-noticed development in how America addresses juvenile crime: specialty courts. These tribunals divert particular types of offenders out of general juvenile courts, marking them for intensive rehabilitation and treatment.⁵ Hundreds of such programs exist nationwide, transforming the experience of justice for tens of thousands of children.⁶

Why are people ignoring this explosive rebirth of the rehabilitative ideal? The academic community has come to a consensus about who makes criminal justice policy: legislatures.⁷ But as this Article will explore, ordinary court functionaries-trial judges, lawyers, and other employees seeking to solve practical problems on the local level-have subverted the popular get- tough legislative agenda and implemented their vision of sound juvenile punishment. This is the New Rehabilitation.

Juvenile courts were created for the express purpose of rehabilitating offenders.⁸ Most histories of modern American juvenile justice begin in 1899, when Illinois established the first separate juvenile court for Page 953 prosecuting delinquent children.⁹ Over the course of the next twenty-five years, virtually every other state adopted a similar tribunal for juveniles charged with crimes.¹⁰ According to the accepted history of American juvenile justice, this commitment to rehabilitation began to wane in the second half of the twentieth century, particularly after the United States Supreme Court extended many criminal procedural rights to children during the civil rights revolution of the 1960s.¹¹ States narrowed the jurisdiction of the juvenile courts, exporting thousands of children into adult criminal courts. For those children remaining in the juvenile system, judges exercised less individualized judgment and served up increasingly punitive sentences.

Progressive critics mourn the demise of this rehabilitative ideal, citing the Warren Court's extension of rights to child offenders as a catalyst for this shift.¹² They contend that the Supreme Court's extension of adult rights to child defendants led those suspicious of rehabilitation to argue that juvenile courts had been rendered ineffective, since they could no longer intervene, treat, and rehabilitate the wayward child at an early stage.¹³ Progressives have been so frustrated by juvenile courts in recent years that several leading scholars have argued that it is time to junk the juvenile justice system because it offers incomplete procedural protections paired with the brutality of adult criminal sanctions.¹⁴ These critics thus join the chorus of liberals worried that the civil rights revolution has backfired.¹⁵ Page 954

It turns out, however, that the accepted progressive critique of juvenile courts is incomplete. Over the past decade, a major new development has occurred within the American juvenile justice system that undermines the dominant view that juvenile rehabilitation is on its deathbed. Across the nation, in every state, local courts are creating new juvenile tribunals that explicitly seek to treat and rehabilitate juvenile offenders. These specialty courts, including drug, gun, and mental health courts, are specifically created to change children's lives so that they do not re-offend. This Article documents and describes the development of these new courts, placing them in proper context. In doing so, it casts the progressive critique of juvenile justice in a new light by suggesting that juvenile rehabilitation remains viable despite legislative hostility. This Article establishes that critics' fears of an end to juvenile rehabilitation are premature, and that there is at least some chance that we are witnessing a renaissance of rehabilitation. The New Rehabilitation is not the handiwork of legislators, however. Rather, local judges, lawyers, probation officers, and social workers-individuals we characterize as street-level bureaucrats-have created juvenile specialty courts from the ground up. Given that these courts have become so widespread, why have so many critics missed this burst of rehabilitative zeal?

One reason, perhaps, is that commentators have assumed that legislatures make criminal law policy. In this view, policymaking is the domain of elected officials, enforcement belongs to the executive branch, and interpretation is the bailiwick of the courts.¹⁶ Of course, most people recognize that appellate courts sometimes make policy, in the sense that their interpretations of laws and constitutions produce particular policy outcomes. But criminal law commentators have not fully recognized that local courts can pursue macro-policies at odds with legislative command. These bureaucrats created these new tribunals, typically cutting their cases from the general juvenile justice docket, to solve specific, concrete problems: drug addiction, mental illness, and the proliferation of guns among children. These professionals chose rehabilitation as the best way to address juvenile crime. Whatever the popular response to the civil rights revolution, it does not seem to have deterred these bureaucrats from building courts that suit their practical needs.

Part I of this Article offers the standard progressive account of the "juvenile justice century."¹⁷ This traditional history describes the rise, decline, and fall of a unique rehabilitative system of juvenile justice. In this Page 955 narrative, rehabilitative juvenile courts remained vibrant until the Supreme Court extended certain constitutional rights to children. From that point on, legislators began to abandon their commitment to rehabilitation. As a result, children now receive the worst of both worlds: fewer rights than adults and no rehabilitation in exchange. Part II describes the rise of the rehabilitative juvenile courts, which have sprouted up in every state within a decade. Critically, these courts are largely the product of street-level bureaucrats-judges, working in tandem with local lawyers, probation officers, and others-using earmarked federal money. Finally, Part III argues that these courts provide important insights into the nature of juvenile justice policy. It explains why street-level bureaucrats created explicitly rehabilitative tribunals in the face of legislative hostility to rehabilitation. It also suggests broader implications of the New Rehabilitation, including the possibility that one fundamental assumption of the all-criminal-law literature that the adult criminal justice system has abandoned rehabilitation as a justification for punishment-may not be correct. It concludes by challenging those progressive critics who feel that the Warren Court overreached, with dire consequences, showing that effective, progressive policies such as rehabilitation can survive irrespective of public, and legislative, hostility to criminal procedural rights.

I The Standard History Of Juvenile Justice

A The Rise Of Juvenile Courts And The Parenting Model

According to most historians, the move to create special juvenile courts was the product of a broader movement within Western culture.¹⁸ In the late nineteenth century, criminologists touted a new science of crime. Challenging the notion of crime as grounded in "free-will choice,"¹⁹ they argued that criminal conduct was the result of "antecedent forces- biological, psychological, social, or environmental."²⁰ In 1892, for example, Elbridge T. Gerry, president of the New York Society for the Prevention of Cruelty to Children, cited poverty, inadequate housing, and neglect as causes of juvenile delinquency.²¹ If the consensus view was that crime could no longer be explained by free will, retributive punishment-imposition of a sentence based on an offender's moral responsibility-made no sense. At the same time, scholars and Progressive activists, motivated by a growing Page 956 belief in science and rationality, became convinced that experts were capable of addressing the damage caused by these "antecedent forces," thus solving the crime problem. As Barry Feld explains it, "[a] growing class of social science professionals fostered the 'rehabilitative ideal,' which requires a belief in human malleability and a consensus about the appropriate directions of personal change."²² Since each individual would require a particular regime of treatment, a...