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Juvenile Justice System

Contemporary Juvenile Justice System And Juvenile Detention Alternatives, Juvenile Crime And ViolenceHISTORY OF JUVENILE COURTS, In re Gault and the Constitution

William Wesley Patton

William Wesley Patton

Dewey G. Cornell
Daniel C. Murrie


The juvenile court and its philosophy of treating minors who violate the criminal law differently than adults is barely a century old. Historically, juvenile criminals were treated the same as adult criminals.

The Law Prior to the Creation of the Juvenile Court

Punishment was the central criminal law philosophy in English common law. A conclusive presumption that children under seven could not form criminal intent eliminated the youngest from the criminal justice system. Children between the ages of seven and fourteen were presumed incompetent to form the requisite criminal intent; the prosecutor, however, could rebut that presumption by demonstrating that the child knew the difference between right and wrong. Children over age fourteen were presumed to have the capacity to form criminal intent. There were no special courts for children, and they were treated as adult criminals. Minors were arrested, held in custody, and tried and sentenced by a court that had discretion to order the child imprisoned in the same jail as adult criminals. Although children received the same punishment as adults, they were not provided with many of the due process protections accorded adult criminals. For instance, minors did not have a right to "bail, indictment by grand jury, [and] right to a public trial" (Conward, p. 41).

Although the early American colonies adopted the English common laws regarding child criminals, from 1825 until 1899 several reform movements initiated significant changes both in philosophy and in treatment of juvenile delinquents. Quaker reformers spurred the New York Legislature in 1824 to pass legislation creating a House of Refuge, which separated poor children and juvenile delinquents from adult criminals. The goal of the House of Refuge movement was both to prevent predelinquents from becoming criminals and to reform those who had already committed crimes. The judge had discretion to determine which juvenile delinquents might properly benefit from the House of Refuge; child criminals unlikely to reform were maintained in adult prisons.

The First Juvenile Court

Progressive reformers in Illinois persuaded the legislature to pass the 1899 Illinois Juvenile Court Act creating America's first juvenile court. The act adopted the early English common law parens patriae philosophy in providing that "the care, custody and discipline of a child shall approximate as nearly as may be that which should be given by its parents." Several unique features characterized the early juvenile court. First, because reformation was the goal, the system focused more on the individual child rather than on the nature of the criminal offense. Second, because the time within which reformation could be accomplished varied with the child, indeterminate sentences often exceeded the determinate sentences that adult criminals received for committing the identical criminal act. Third, juvenile delinquents were separated from adult criminals because they were different in kind. Adult criminals were morally blameworthy; children were merely the products of their environment and therefore retributive punishment was not warranted. Fourth, because juvenile court proceedings were not criminal, children were not entitled to the full panoply of due process protections accorded adult criminals. Informality permitted the court to consider all facts relevant to determining the child's reformation plan. Petitions replaced criminal complaints, summons replaced warrants, custody replaced arrest, detention replaced confinement, initial hearings replaced arraignments, and delinquency replaced conviction. Fifth, juvenile courts had broad discretion to fashion innovative rehabilitation programs not always available in adult courts, such as release upon informal voluntary probation conditions. Sixth, technical evidentiary rules were inapplicable in juvenile court because they impeded the judge from determining all facts necessary to determine the individualized treatment necessary to rehabilitate the minor.

Although the goals of the juvenile court were laudable, many historians have bemoaned the system's realities. In 1970 the harshest critic, Sanford Fox, termed the reformers' legislation "a colossal failure" (p. 1224). It became apparent that the informal procedures and almost unbridled discretion of juvenile court judges often supplied minors with less-fair procedures and treatment than adults received. In a famous 1839 Pennsylvania case, Ex parte Crouse, the court expressed the general view of American courts that because the goal of juvenile justice is rehabilitation, not punishment, the due process protections afforded adult criminals need not be provided to juveniles: "The House of Refuge is not a prison, but a school. Where reformation, and not punishment is the end" the formalities of the criminal court are not required. In addition, the juvenile court's goal of individualized treatment often lacked objective criteria and conflicted with notions of justice. By the 1960s critics spoke of the demise of the juvenile court, and they "raised questions about the effect on juveniles of the lack of due process procedures and protection of individual rights" (Sarri, p. 5).

In re Gault and the Constitution

The assault on the reform movement began with a 1966 case in the U.S. Supreme Court, Kent v. United States, which held that under a District of Columbia statute the informal process of determining whether a juvenile should be tried in juvenile or in adult court failed to provide sufficient due process protection for children. The Court held that before a minor is transferred to adult court the child is entitled to an informal hearing where the trial court must articulate the reasons for the transfer so that the child can have an adequate record for appellate review. Additionally, in response to the state's position that juvenile cases were civil, not criminal, the Court responded, "There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds; that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children." The Court thereby rejected the reform movement's justification for informality in juvenile delinquency cases. And a year later in In re Gault, the Court set the due process boundaries between adult criminal procedure and juvenile delinquency trials. First, the Court rejected the reformers' claims that the juvenile justice system accurately and fairly determined children's criminal responsibility: "Under our Constitution, the condition of being a boy does not justify a kangaroo court." Second, although Gault rejected the argument that the Fourteenth Amendment due process clause requires identical due process procedures for adults and juveniles, the Court determined that juveniles must at least receive alternative equivalents. Thus, in a juvenile delinquency trial, children are entitled to: (1) notice of the charges, (2) a right to counsel, (3) a right to confrontation and cross-examination, and (4) a privilege against self-incrimination. The U.S. Supreme Court quickly followed the Kent and Gault cases with the 1970 case In re Winship, which held that juvenile delinquency requires the "beyond a reasonable doubt" adult standard of proof, and the 1971 case McKiever v. Pennsylvania, which held that juveniles charged with a criminal law violation are not entitled to a jury trial because the Sixth Amendment right to jury trial applies only to criminal actions and because juries would substantially eviscerate the beneficial aspects of the juvenile court's "prospect of an intimate, informal protective proceeding."

The U.S. Supreme Court's juvenile delinquency due process cases ushered in a period of reform in state juvenile court systems that lasted almost a decade. In 1974 the President's Commission on Law Enforcement and Administration of Justice was established to study the deficiencies in the juvenile delinquency system. The commission urged more nonjudicial service agency intervention for predelinquents and recommended limitations on the confinement of minors.

Increased and More Serious Juvenile Crime

From the mid-1980s to the early 1990s the national juvenile crime rate rose dramatically; "property crime by juveniles increased 11 percent nationally between 1983 and 1992, [and] violent crime increased by 57 percent" (Feld, pp. 976–977). During this same period, media coverage of juvenile crime dramatically increased. Even though the frequency and content of news coverage often exaggerated the rise in youth crime, the coverage had an enormous impact on the public's call for more protection for citizens and for harsher treatment of juveniles committing serious criminal acts. In reality, during the decade 1987–1997 only 6 percent of American juveniles were arrested and fewer than 0.5 percent were arrested for violent crimes. Nevertheless, state legislatures quickly responded to the public's fear of rising juvenile crime rates by substantially modifying the juvenile court process.

All fifty states modified their juvenile law codes to provide that, under certain circumstances, juveniles could be tried as adults in criminal court. These procedures fall into three distinct types: (1) judicial discretion to transfer a minor from juvenile court to adult court; (2) prosecutorial discretion to decide in which court the child will be tried; and (3) legislative mandates requiring juveniles who commit certain offenses to be tried in adult court. A second statutory change lowered the age at which children were eligible to be transferred to adult court. According to Elizabeth S. Scott, writing in 2000, "Between 1992 and 1995, eleven states lowered the age for transfer; twenty-four states added crimes to automatic/legislative waiver statutes, and ten states added crimes to judicial waiver statutes" (p. 585, fn. 145). A third major juvenile law modification was the development of blended sentences, which involve lengthy juvenile law confinements coupled with the transfer of the juvenile upon reaching the age of majority to serve the remainder of the sentence in adult prison. Finally, juvenile courts have opened their proceedings to the public in cases that involve certain specified serious crimes, and legislatures have substantially reduced minors' right to seal juvenile delinquency court records.

Both liberal and conservative experts and organizations have called for the elimination of the juvenile court either because it is a too lenient response to the perception of increasing serious juvenile crime or because it unfairly treats poor and minority children. It is uncertain whether the public's clamor for change will be quelled by the reduction in juvenile crime that began in the mid-1990s.


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FELD, BARRY C. 1995. "Violent Youth and Public Policy: A Case Study of Juvenile Justice Law Reform." Minnesota Law Review 79:965–1022.

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SHEPHERD, ROBERT E., JR. 1999. "The 'Child' Grows Up: The Juvenile Justice System Enters Its Second Century." Family Law Quarterly 33:589–605.

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