history of juvenile justice essay

Juvenile Justice History

This is an introduction to Juvenile Justice in America. Since the 1990 s, youth crime rates have plummeted. These falling crime rates have led many jurisdictions to rethink the punitive juvenile justice practices that became popular in the 1980 s and 1990 s. Today, states are instituting major systemic reforms designed to reduce institutional confinement, close old 19 th century era reform schools, and expand community-based interventions.

House of Refuge

In the late 18 th and early 19 th century, courts punished and confined youth in jails and penitentiaries. Since few other options existed, youth of all ages and genders were often indiscriminately confined with hardened adult criminals and the mentally ill in large overcrowded and decrepit penal institutions. Many of these youth were confined for noncriminal behavior simply because there were no other options. At the same time, American cities were confronting high rates of child poverty and neglect putting pressure on city leaders to fashion a solution to this emerging social issue. In response, pioneering penal reformers Thomas Eddy and John Griscom, organized the Society for the Prevention of Pauperism, to oppose housing youth in adult jails and prisons and urge the creation of a new type of institution. Their work led to the establishment of the New York House of Refuge in 1825 , the first institution designed to house poor, destitute and vagrant youth who were deemed by authorities to be on the path towards delinquency. The New York House of Refuge became the first movement in what was to later become the juvenile justice system. With three years of its opening, similar institutions were opened in Boston and Philadelphia. By the 1840 s, approximately 25 more facilities were constructed throughout the country. Houses of Refuge were large fortress-like congregate style institution located in urban areas for youth designated as abandoned, delinquent or incorrigible. The average number of youth in a house of refuge was 200 , but some, like the New York House of Refuge, housed over 1 , 000  youth.

Reform, Training, or Industrial Schools

For the first half of the 19 th century, Houses of Refuge were the primary institutions confining the increasing number of poor and delinquent youths. Unfortunately, Houses of Refuge quickly confronted the same issues that plagued adult jail and prisons – overcrowding, deteriorating conditions, and staff abuse. In addition, with the emerging public school movement and compulsory education, social reformers began arguing for a new type of institution that placed greater emphasis on education. Through this movement the reform school, also called training and industrial schools, became an indelible part of America’s juvenile justice system. Today, reform schools are typically called youth correctional institutions and continue to follow a classic congregate institutional model — concentrating large number of youth in highly regimented, penitentiary-like institutions.

Preston School of Industry (est.  1894 )

San Francisco Industrial School

One of the best examples of a  19 th century reform school was the San Francisco Industrial School, which established in 1859 . Throughout its turbulent 30 -year history, the Industrial School was the subject of frequent scandals stemming from physical abuse to managerial incompetence. When the facility was finally ordered closed in the 1891 , the city’s judiciary denounced it as a failed system. Watch this film featuring Daniel Macallair, to learn more.

Obtain your copy of The San Francisco Industrial School and the Origins of Juvenile Justice in California: A Glance at the Great Reformation by CJCJ Executive Director Daniel Macallair.

Juvenile Court

Until the late 19 th century, criminal courts tried youth and adults. The 16 th century educational reform movement in England that perceived youth to be different from adults, with less than fully developed moral and cognitive capacities, fueled the movement for juvenile justice reform in America. By the middle 19 th century, following the creation of houses of refuge, new innovations such as cottage institutions, out-of-home placement, and probation were introduced. These new approaches were typically the result of enterprising social reformers who sought new and better ways to address the problem of wayward youth.

This collection of institutions and programs were finally brought together with the creation of the juvenile court. First established in 1899  in Cook County, Illinois and then rapidly spread across the country, the juvenile court became the unifying entity that led to a juvenile justice system. Founded on the ancient legal of doctrine parens patriae (the State as Parent) which declared the King to be the guardian of all his subjects, the new court assumed the right to intervene on behalf of youth deemed to be in need of help based on their life circumstances or their delinquent acts. The primary motive of the juvenile court was to provide rehabilitation and protective supervision for youth. The court was intended to be a place where the child would receive individualized attention from a concerned judge. Court hearings were informal and judges exercised broad discretion on how each case was handled. By the 1950 s and 1960 s public concern grew about the effectiveness of the juvenile justice system, because of the disparities in treatment that resulted from the absolute discretion of juvenile court judges. Similarly situated youths could receive vastly different sentences based on the mood, temperament, or personal philosophy of individual judges. In the 1960 s, the Supreme Court made a series of decisions that formalized the juvenile courts and introduce more due process protections such as right to counsel. Formal hearings were required in situations where youth faced transfer to adult court and or a period of long-term institutional confinement.

In the late 1980 s the public perceived that juvenile crime was on the rise and that the system was too lenient. Many states passed punitive laws, including mandatory sentences and automatic adult court transfer for certain crimes. In the 1990 s this tough on crime trend accelerated. Tougher laws made it easier to transfer youth offenders to the criminal justice system. By the mid- 1990 s use of institutional confinement for even minor offenses was growing. Youth correctional facilities across the country were overcrowded and conditions were deplorable . Beginning the in the late 1990 s the drive to increase rates of youth incarceration began to recede. Led by California, many states began reducing the number of youths committed to youth correctional institutions. Borrowing from the lessons learned from the closing of the Massachusetts training schools in the early 1970 s, the efficacy of the congregate institution was now being questioned. By the end of the first decade of the 21 st century, states such as California were instituting the most sweeping reforms in the history of the juvenile justice system.

View CJCJ materials on houses of refuge»

View CJCJ materials on industrial schools »

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Juvenile Crime, Juvenile Justice (2001)

Chapter: the juvenile justice system, the juvenile justice system.

A separate juvenile justice system was established in the United States about 100 years ago with the goal of diverting youthful offenders from the destructive punishments of criminal courts and encouraging rehabilitation based on the individual juvenile's needs. This system was to differ from adult or criminal court in a number of ways. It was to focus on the child or adolescent as a person in need of assistance, not on the act that brought him or her before the court. The proceedings were informal, with much discretion left to the juvenile court judge. Because the judge was to act in the best interests of the child, procedural safeguards available to adults, such as the right to an attorney, the right to know the charges brought against one, the right to trial by jury, and the right to confront one's accuser, were thought unnecessary. Juvenile court proceedings were closed to the public and juvenile records were to remain confidential so as not to interfere with the child's or adolescent's ability to be rehabilitated and reintegrated into society. The very language used in juvenile court underscored these differences. Juveniles are not charged with crimes, but rather with delinquencies; they are not found guilty, but rather are adjudicated delinquent; they are not sent to prison, but to training school or reformatory.

In practice, there was always a tension between social welfare and social control—that is, focusing on the best interests of the individual child versus focusing on punishment, incapacitation, and protecting society from certain offenses. This tension has shifted over time and has varied significantly from jurisdiction to jurisdiction, and it remains today.

In response to the increase in violent crime in the 1980s, state legal reforms in juvenile justice, particularly those that deal with serious offenses, have stressed punitiveness, accountability, and a concern for public safety, rejecting traditional concerns for diversion and rehabilitation in favor of a get-tough approach to juvenile crime and punishment. This change in emphasis from a focus on rehabilitating the individual to punishing the act is exemplified by the 17 states that redefined the purpose clause of their juvenile courts to emphasize public safety, certainty of sanctions, and offender accountability (Torbet and Szymanski, 1998). Inherent in this change in focus is the belief that the juvenile justice system is too soft on delinquents, who are thought to be potentially as much a threat to public safety as their adult criminal counterparts.

It is important to remember that the United States has at least 51 different juvenile justice systems, not one. Each state and the District of Columbia has its own laws that govern its juvenile justice system. How juvenile courts operate may vary from county to county and municipality to municipality within a state. The federal government has jurisdiction over a small number of juveniles, such as those who commit crimes on Indian reservations or in national parks, and it has its own laws to govern juveniles within its system. States that receive money under the federal Juvenile Justice and Delinquency Prevention Act must meet certain requirements, such as not housing juveniles with adults in detention or incarceration facilities, but it is state law that governs the structure of juvenile courts and juvenile corrections facilities. When this report refers to the juvenile justice system, it is referring to a generic framework that is more or less representative of what happens in any given state.

Legal reforms and policy changes that have taken place under the get-tough rubric include more aggressive policing of juveniles, making it easier (or in some cases mandatory) to treat a juvenile who has committed certain offenses as an adult, moving decision making about where to try a juvenile from the judge to the prosecutor or the state legislature, changing sentencing options, and opening juvenile proceedings and records.

Changes in laws do not necessarily translate into changes in practice. In addition to the belief that at least some juvenile offenders are amenable to treatment and rehabilitation, other factors limit overreliance on get-tough measures: (1) the expense of incarceration, (2) overcrowding that results from sentencing offenders more harshly, and (3) research evidence that finds few gains, in terms of reduced rates of recidivism, from simply incapacitating youth without any attention to treatment or rehabilitation (Beck and Shipley, 1987; Byrne and Kelly, 1989; Hagan, 1991; National Research Council, 1993a; National Research Council, 1993b; Shannon et al., 1988). Practice may also move in ways not envisioned when laws are passed. For example, many jurisdictions have been experimenting with

alternative models of juvenile justice, such as the restorative justice model. Whereas the traditional juvenile justice model focuses attention on offender rehabilitation and the current get-tough changes focus on offense punishment, the restorative model focuses on balancing the needs of victims, offenders, and communities (Bazemore and Umbreit, 1995).

Tracking changes in practice is difficult, not only because of the differences in structure of the juvenile justice system among the states, but also because the information collected about case processing and about incarcerated juveniles differs from state to state, and because there are few national data. Some states collect and publish a large amount of data on various aspects of the juvenile justice system, but for most states the data are not readily available. Although data are collected nationally on juvenile court case processing, 1 the courts are not required to submit data, so that national juvenile court statistics are derived from courts that cover only about two-thirds of the entire juvenile population (Stahl et al., 1999). Furthermore, there are no published national data on the number of juveniles convicted by offense, the number incarcerated by offense, sentence length, time served in confinement, or time served on parole (Langan and Farrington, 1998). 2 Such national information is available on adults incarcerated in prisons and jails.

The center of the juvenile justice system is the juvenile or family court (Moore and Wakeling, 1997). In fact, the term juvenile justice is often used synonymously with the juvenile court, but it also may refer to other affiliated institutions in addition to the court, including the police, prosecuting and defense attorneys, probation, juvenile detention centers, and juvenile correctional facilities (Rosenheim, 1983). In this chapter, juvenile justice is used in the latter, larger sense.

After providing a brief historical background of the juvenile court and a description of stages in the juvenile justice system, we examine the various legal and policy changes that have taken place in recent years, the impact those changes have had on practice, and the result of the laws, policy, and practice on juveniles caught up in the juvenile justice system.

Throughout the chapter, differences by race and by gender in involvement in the juvenile justice system are noted. Chapter 6 examines in more detail the overrepresentation of minorities in the juvenile justice system.

HISTORY OF THE JUVENILE JUSTICE SYSTEM

Until the early 19th century in the United States, children as young as 7 years old could be tried in criminal court and, if convicted, sentenced to prison or even to death. Children under the age of 7 were presumed to be unable to form criminal intent and were therefore exempt from punishment. The establishment of special courts and incarceration facilities for juveniles was part of Progressive Era reforms, along with kindergarten, child labor laws, mandatory education, school lunches, and vocational education, that were aimed at enhancing optimal child development in the industrial city (Schlossman, 1983). Reformers believed that treating children and adolescents as adult criminals was unnecessarily harsh and resulted in their corruption. In the words of one reformer, the main reason for the establishment of the juvenile court was “to prevent children from being treated as criminals ” (Van Waters, 1927:217). Based on the premise that children and young adolescents are developmentally different from adults and are therefore more amenable to rehabilitation, and that they are not criminally responsible for their actions, children and adolescents brought before the court were assumed to require the court's intervention and guidance, rather than solely punishment. They were not to be accused of specific crimes. The reason a juvenile came before the court—be it for committing an offense or because of abuse or neglect by his or her parents or for being uncontrollable—was less important than understanding the child's life situation and finding appropriate, individualized rehabilitative services (Coalition for Juvenile Justice, 1998; Schlossman, 1983). Historians have noted that the establishment of the juvenile court not only diverted youngsters from the criminal court, but also expanded the net of social control over juveniles through the incorporation of status jurisdiction into states' juvenile codes (e.g., Platt, 1977; Schlossman, 1977).

The first juvenile court in the United States, authorized by the Illinois Juvenile Court Act of 1899, was founded in 1899 in Chicago. The act gave the court jurisdiction over neglected, dependent, and delinquent children under age 16. The focus of the court was rehabilitation rather than punishment. Records of the court were to be confidential to minimize stigma. The act required separation of juveniles from adults when incarcerated and barred the detention of children under age 12 in jails. The act also provided for informality in procedures within the court. The idea of the juvenile court spread rapidly. By 1925, a functioning juvenile court existed in every state except Maine and Wyoming (Schlossman, 1983).

How well the juvenile courts around the country lived up to the founders ' aspirations is difficult to ascertain. They succeeded in diverting most children and adolescents from the criminal system, but they may

have been less successful with their rehabilitative goals. Schlossman (1983:965) noted that the following broad generalizations could be made of early 20th century juvenile courts:

First, the clientele was overwhelmingly from the lower class and of immigrant parents. Second, boys and girls appeared in court for different reasons, and the courts disposed of their cases differently. The majority of girls, as compared to a very small proportion of boys, were charged under the loose heading of “immorality;” however, higher percentages of girls than boys were sent to reformatories, whereas lower percentages were placed on probation. Third, referral to court by agents other than the police, especially parents, relatives, and neighbors, was a far more common practice than it is today. Fourth, juvenile courts, particularly the probation staffs, often dealt with nearly as many cases “unofficially” (without court appearance) as officially. This placed added burdens on already large case loads and widened the net of the court to embrace every conceivable form of nonconventional behavior.

A case study of the Milwaukee juvenile court in the early 20th century (Schlossman, 1977) found that probation officers had over 200 cases, far too many for the individualized services envisioned by the Progressive Era reformers. The detention center lacked any serious diagnostic function and was sometimes used punitively. The court hearings, rather than relying on “empathy, trust, and a spirit of rapprochement” (Schlossman, 1983:966) as called for by Denver's Judge Ben Lindsey, resorted to “fear, threats, and short-term detention to render children malleable” (Schlossman, 1983:966).

As early as the 1910s, criticisms of the juvenile court's fairness and effectiveness began to be heard. One set of critics called into question the court's informality, charging that it resulted in discrimination and lack of attention to due process. Furthermore, the court treated children who had committed no crime the same as those who had committed a criminal act. Unlike adults, juveniles could be detained and incarcerated without a trial, a lawyer, or even being made aware of the charges against them. Another set of critics charged the court with being too lenient on young offenders. These same criticisms continue today (Dawson, 1990; Feld, 1997).

Three Supreme Court decisions in the second half of the 20th century resulted in more procedural formality in the juvenile court, but other decisions maintained differences between juvenile and criminal courts. In 1966, in Kent v. the United States, the Court concluded that Morris Kent was denied due process rights when his case was transferred to criminal court without a hearing and without giving his attorney access to the social information on which the juvenile court judge based his decision.

The Court held that juveniles had the right to a hearing on the issue of transfer to adult court, that there must be the right to meaningful counsel, that counsel must be given access to the social records considered by the juvenile court, and that the juvenile court must provide a statement of its reasons for transfer with any waiver order. Justice Abe Fortas also called into question the fundamental fairness of the juvenile court:

While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. . . . 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 ( Kent v. United States, 383 U.S. 541, 555-556).

A year later, the decision of in re Gault (387 U.S. 1, 1967) extended the procedural safeguards required in juvenile court even further, giving juveniles many rights similar to those of adults charged with a crime. Fifteen-year-old Gerald Gault was sentenced to a state reformatory for an indeterminate period that could last until his 21st birthday for making an obscene phone call. The maximum sentence for an adult would have been a $50 fine or 2 months in jail. The case embodied nearly every procedural irregularity distinctive of juvenile courts: Gault was detained by the police and held overnight without his parents being notified; he was required to appear at a juvenile court hearing the following day; a probation officer filed a pro forma petition alleging Gault was a delinquent minor in need of care and custody of the court; no witnesses were called; there was no sworn testimony or written record of the court proceedings; and Gault was not advised of his right to remain silent or to have an attorney. The Gault decision entitled juveniles to receive notice of charges against them, to have legal counsel, to confront and cross-examine witnesses, to be protected against self-incrimination, to receive a transcript of the court hearing, and to appeal the judge's decision.

In 1970, the Supreme Court raised the standard of proof necessary in juvenile court to that required in adult criminal court. In in re Winship (397 U.S. 358), the Court required that juveniles charged with criminal acts be proved “beyond a reasonable doubt” to have committed them. Prior to this ruling, there was no constitutional decision that required more than the less stringent civil court standard of a “preponderance of the evidence.”

Protection from double jeopardy was extended to juveniles by the Supreme Court in 1975. In Breed v. Jones (421 U.S. 519), the Court held that

the double jeopardy clause of the Fifth Amendment prohibits states from trying a person as a juvenile and later as an adult for the same crime. In so doing, the Court recognized juvenile court proceedings as criminal proceedings, not social welfare ones (Feld, 1999). Nevertheless, the Court did not grant full criminal procedural entitlements to juveniles. In McKeiver v. Pennsylvania (403 U.S. 528 [1971]), the Court held that juveniles were not entitled to a trial by jury, arguing that the juvenile court proceeding was not the fully adversarial process found in criminal courts. Some critics of the juvenile court argue that, given the punitive changes in juvenile justice legislation since the 1971 decision, the only remaining procedural differences between juvenile and adult criminal courts are access to juries and access to counsel (Feld, 1993). The lack of access to juries may have consequences for the outcome of a trial because judges and juries may decide cases differently. There is some evidence that juvenile court judges may be more likely than juries to convict. For example, a study by Greenwood et al. (1983) of juvenile justice administration in California compared the conviction rates of similar types of cases in juvenile and adult courts, concluding that it “is easier to win a conviction in the juvenile court than in the criminal court, with comparable types of cases” (Greenwood et al., 1983:30-31 cited in Feld, 1999). Furthermore, judges try hundreds of cases every year and consequently may evaluate facts more casually and less meticulously than jurors who focus on only one case. Judges may have preconceptions of the credibility of police and probation officers and of the juvenile in question. In contrast, jurors hear only a few cases and undergo careful procedures to test bias for each case. Also, judges are not required to discuss the law and evidence pertinent to a case with a group before making a decision, and they are often exposed to evidence that would be considered inadmissible in a jury trial (Feld, 1993, 1999).

From their inception, juvenile courts had authority not only over children and adolescents who committed illegal acts, but also over those who defied parental authority or social conventions by such acts as running away from home, skipping school, drinking alcohol in public, or engaging in sexual behavior. These children and adolescents were deemed to be out of control and in need of guidance. Criticism of treating these status offenders (whose acts were considered problematic only because of their status as children) the same as children and adolescents who had committed criminal acts grew during the 1960s. The juvenile courts also had jurisdiction over abused and neglected children who had committed no offense. In the 1960s, many states revised their delinquency laws to move status offenders and nonoffenders into new nondelinquent categories, such as Persons, Children, or Minors in Need of Supervision (referred to as PINS, CHINS, and MINS). In 1974, in response to reported abuses in

the nation's training and reform schools and the high numbers of juveniles being held in adult facilities, Congress passed the Juvenile Justice and Delinquency Prevention Act (42 U.S.C. §§5601-5640), creating a federal Office of Juvenile Justice and Delinquency Prevention within the Department of Justice. The Act provided federal leadership in the reform of the treatment of status offenses and nonoffenders. It required states that received federal formula grants to remove noncriminal status offenders and nonoffenders (e.g., abused and neglected children) from secure detention and correctional facilities. The provisions for the deinstitutionalization of status offenders led to a decrease in the numbers of status offenders held in detention facilities and institutions by the early 1980s (Krisberg and Schwartz, 1983; National Research Council, 1982; Schneider, 1984a). Schneider (1984b), however, found that some children and adolescents who, prior to the move to deinstitutionalize status offenders, would have been charged with a status offense, were subsequently being charged with minor delinquent offenses (e.g., theft rather than running away). Therefore, Schneider asserted, they were still coming to the court at the same rate, but as delinquents rather than status cases. Amendments to the 1974 act in 1980 weakened the deinstitutionalization mandate somewhat by allowing detention and incarceration of noncriminal juveniles for violating a valid court order. Status offenders who did not comply with treatment ordered by the court could become criminal delinquents by virtue of being charged with criminal contempt of court.

Young people who might formerly have been processed through the juvenile justice system for status offenses may now be institutionalized in other facilities, such as private mental health and drug and alcohol treatment facilities. Very little is known about the number of youngsters confined to such institutions, the length of their institutionalization, or the conditions of their confinement.

Concern over housing juveniles with adult criminals led to other requirements under the Juvenile Justice and Delinquency Prevention Act. Sight and sound separation of juveniles and adults in detention and correctional facilities and removal of juveniles from adult jails and lockups were mandated. In 1988, the act was amended to require states to address disproportionate confinement of minority juveniles.

At the same time the federal agenda and the voices of reformers were calling for deinstitutionalization procedures and more prevention, the states seemed to be moving in the opposite direction (Schwartz, 1989). Between 1978 and 1981, lawmakers in nearly half the states enacted some form of tougher legislation with regard to handling serious and chronic juvenile offenders. In a handful of states, provisions included making it easier to prosecute juveniles in adult court by lowering the age of judicial waiver (three states); excluding certain offenses from juvenile court juris-

diction (four states); and enacting mandatory minimums or sentencing guidelines for juveniles (three states). The impact of these reforms was an increase in the detention rate on any given day by more than 50 percent between 1977 and 1985.

In response to public concern over crime, in particular violent crime, committed by children and adolescents, almost all states now have made these kinds of changes to the laws governing their juvenile justice systems since the early 1990s. These changes are described following a description of the current juvenile justice system processes.

THE JUVENILE JUSTICE SYSTEM IN THE 1990s

Juvenile justice systems vary greatly by jurisdiction. The organization of courts, case processing procedures, and juvenile corrections facilities are determined by state law. Most juvenile courts have jurisdiction over criminal delinquency, abuse and neglect, and status offense delinquency cases. Criminal delinquency cases are those in which a child has committed an act that would be a crime if committed by an adult. Status offense delinquency cases are acts that would be legal for an adult, but are not allowed for juveniles, such as truancy, running away, incorrigibility (i.e., habitually disobeying reasonable and lawful commands of a parent, guardian, or custodian; also referred to in various statutes as unruly, uncontrollable, or ungovernable), or curfew violations. Some courts also have responsibility for other types of cases involving children, such as dependency, termination of parental rights, juvenile traffic cases, adoption, child support, emancipation, and consent cases (e.g., consent for a minor to marry, have an abortion, enlist in the armed services, or be employed).

Before any court processes come into play, a juvenile must be referred to the court. Referrals may be made by the police, parents, schools, social service agencies, probation officers, and victims. Law enforcement agencies account for the vast majority—86 percent in 1996—of delinquency referrals (Stahl et al., 1999). 3 The police are the principal gatekeepers of the justice system and play a central role in the processing of youths in both the criminal and juvenile justice systems. They have a great deal of contact with youthful offenders and at-risk youth, perhaps more than any other officials do in the justice system. Most of these contacts are undocumented and of low visibility (Goldstein, 1960); only a fraction reach the attention of juvenile court judges or youth detention authorities.

There is scant empirical data on police encounters with juveniles (Black and Reiss, 1970; Lundman et al., 1978; Wordes and Bynum, 1995). A study by Sealock and Simpson (1998), based on an analysis of Philadelphia birth cohort data in which police contacts with juveniles from 1968 through 1975 were recorded, is one of the few that deals with juveniles ' encounters with police. To further understand the nature of police interactions with juveniles, the panel commissioned an analysis by Worden and Myers (1999) of the data involving juveniles from the Project on Policing Neighborhoods, a multimethod study of police patrols in two cities (Indianapolis, Indiana, and St. Petersburg, Florida). The study involved systematic social observations of patrol officers in the field by trained observers who accompanied officers during their entire work shifts. Observations were based on spatial and temporal sampling, with shifts representing all times of the day and all days of the week. Data were gathered during summer 1996 in Indianapolis and summer 1997 in St. Petersburg. Observers recorded more than 7,000 encounters involving approximately 12,000 citizens. Of these encounters, 421 involved one or more citizens (a total of 626) who appeared to be under 18 years of age and who were treated by the police as suspected offenders. An encounter was defined as “any event in which there is face-to-face communication between a police officer and a member of the public” (Worden and Myers, 1999:13).

Consistent with past research, most of the encounters involved incidents of relatively low seriousness; 55 percent were for public disorder (e.g., disorderly behavior and loitering), nonviolent crimes (e.g., shoplifting and other theft), and traffic offenses. Less than one-tenth of the encounters concerned violent crimes. It appears that police may be initiating more of the encounters than in the past. Worden and Myers (1999) reported that previous research (primarily conducted in the 1960s and 1970s) found that the majority of police encounters with juveniles resulted from a request from a victim or complainant, and only one-quarter to one-third of encounters were initiated by the police themselves. In the study, half of the encounters with juveniles were initiated by the police. This finding may indicate an increase in proactive policing, although direct comparisons with past research are hindered by differences in measurement and sampling. The existence of a juvenile curfew in Indianapolis gave police in that city authority to stop juveniles after hours and contributed to a high percentage (61 compared with 37 percent in St. Petersburg) of their encounters with juveniles being police-initiated.

Worden and Myers (1999) found that only 13 percent of the encounters ended with the arrest of the juvenile(s). Table 5-1 shows the frequency with which each disposition in these encounters was the most authoritative that the police took. The categories are listed from least

TABLE 5-1 Disposition of Police Encounters with Juveniles and Adults

restrictive (release) to most restrictive (arrest). Over half (56 percent) of the encounters involve interrogation and/or searching of the suspects. As the table shows, dispositions were similarly distributed in police encounters with adults.

Worden and Myers (1999) analyzed factors that affected the likelihood of arrest in juvenile encounters with police. Arrests were significantly more likely when there was strong evidence against a suspect and when the offense was a serious one. The likelihood of arrest more than doubled when a juvenile showed disrespect for the police officer. Possession of a weapon also increased the likelihood of arrest. Female juveniles were significantly less likely to be arrested, independent of other factors, including seriousness of offense. 4 Worden and Myers concluded that “the situational factors on which research on police behavior has dwelt do not suffice to account for arrest decisions, however, and they are of even less value in explaining officers' choices among nonarrest alternatives” (1999:31).

Once a juvenile is taken into custody, it appears as if police are less likely now to deal informally with him or her than in the past. About 22 percent of juveniles taken into custody by police were handled informally within the department and released in 1998, compared with 45 percent in 1970 (Federal Bureau of Investigation, 1999); 69 percent of juveniles taken into police custody in 1998 ended up in juvenile court and 7 percent in criminal (adult) court.

Although there are many differences among juvenile courts in case processing, there are stages that they all must go through: intake, petitioning, adjudication, and disposition. Figure 5-1 provides a simplified view of case flow through the juvenile justice system. Cases that are referred to the court are screened through an intake process, in which charges are delineated. In some systems, this process is done within the

FIGURE 5-1 Simplified view of case flow through the juvenile justice system. Source: Adapted from Snyder and Sickmund (1999).

court system; in others, it occurs outside the court system, for example, in a probation department, a state juvenile justice department, or the prosecutor's office. The intake screening determines whether a case should not be filed because of insufficient evidence, resolved by diversion to a program or specified set of conditions, or should proceed to formal processing in the juvenile court (i.e., petitioning, which is similar to indictment in criminal court). Depending on state law, a decision to waive a case to criminal court may also be made at intake processing.

If a case proceeds to formal handling, a petition is filed and the case is scheduled for an adjudicatory hearing in the juvenile court, or the case may be waived to criminal court. At the adjudicatory hearing, which establishes the facts of the case (similar to a trial in criminal court), the juvenile may be judged to be delinquent (similar to a finding of guilty in criminal court) and scheduled for a disposition hearing; the juvenile may be found not guilty, and the case may be dismissed; or the case may be continued in contemplation of dismissal. In the latter event, the juvenile may be asked to take some action prior to the final decision being made, such as paying restitution or receiving treatment. If a juvenile has been

adjudicated delinquent (i.e., found guilty), a disposition hearing (similar to sentencing in criminal court) is held to determine the appropriate sanction. Dispositions include commitment to an institution, placement in a group or foster home or other residential facility, probation, referral to an outside agency or treatment program, imposition of a fine, community service, or restitution. At any point during the process, some juveniles may be held in a secure detention facility. In 1996, juveniles were detained in 18 percent of criminal delinquency cases processed by the juvenile courts (Snyder and Sickmund, 1999).

Juvenile courts also vary by the extent of services for which they are responsible. Some courts oversee only the adjudication process, while others provide a full array of preadjudication and postdisposition services. In over half the states, juvenile courts administer their own probation services, and many are responsible for detention and intake as well (Torbet, 1990).

Some researchers have expressed concerns regarding certain juvenile justice procedures. As mentioned previously, the lack of a right to a jury trial may have consequences for the outcome of a trial. Also at issue is legal representation for juveniles. As in adult court, juveniles have the right to be represented by an attorney. The majority of states, however, allow juveniles to decide independently to waive their rights to an attorney without having had legal counsel prior to the decision (U.S. General Accounting Office, 1995b). This practice is inconsistent with the assumption that children are different from and should be treated differently than adults, in that it implies that juveniles can make the decision “voluntarily and intelligently, ” although studies suggest that juveniles are not as competent as adults to waive their rights in a “knowing and intelligent” manner (Feld, 1993:31).

Studies from 1980 to 1990 found that the majority of juveniles were not represented by an attorney, including the majority of youths who received out-of-home placement (Feld, 1993). Rates of representation varied between urban and rural jurisdictions, and among states and within states (U.S. General Accounting Office, 1995b).

Also of possible concern are the quality and impact of attorney representation. Some studies suggest that there are grounds for concern about the effectiveness of defense counsel in juvenile trials, possibly because of inexperience and large caseloads (Feld, 1993). Studies also indicate that presence of counsel in juvenile courts is related to differences in pretrial detention, sentencing, and case-processing practices (Feld, 1993). One study (U.S. General Accounting Office, 1995b) found that, in general, while unrepresented juveniles were as likely as represented juveniles to be adjudicated as delinquents, they were less likely to receive out-of-home placement for certain crimes than juveniles with attorneys. The

study also found that other factors, including the type of counsel, were more strongly associated with placement outcomes than the mere fact of being represented by counsel.

Juvenile courts processed nearly 1.8 million criminal delinquency cases 5 and 162,000 status offense delinquency cases in 1996 (Stahl et al., 1999). Figures 5-2 and 5-3 show how criminal and status delinquency cases, respectively, were handled by the courts in 1996, the most recent year for which data are available. A total of 56 percent of the criminal delinquency cases that were referred to juvenile courts in 1996 were formally handled by the court (petitioned); that is, these cases appeared on the official court calendar in response to the filing of a petition, complaint, or other legal instrument. Over the past 10 years, there has been an increase in the percentage of cases (from 47 percent in 1986 to 56 percent in 1996) handled formally for all juveniles, regardless of age, race, or gender. Criminal delinquency cases involving older juveniles, males, and blacks, however, are more likely to be petitioned than those involving younger juveniles, females, and whites or other races, respectively (Stahl et al., 1999). Arguably, formal handling of cases can be considered more punitive than release or diversion to other systems. Therefore, the increase in formal handling of juveniles who come into contact with the police or who are referred to juvenile court may be interpreted as a system that is becoming more punitive.

Diversion covers a wide range of interventions that are alternatives to initial or continued formal processing in the system (Kammer et al., 1997). The idea behind diversion is that processing through the juvenile justice system may do more harm than good for some offenders (Lundman, 1993). First offenders or minor offenders may be diverted to an intervention at intake processing or prior to formal adjudication. Juveniles may be diverted from detention while awaiting adjudication and disposition. After adjudication, minors may be diverted from incarceration by being placed on probation or given some other sanction or intervention.

One concern that is often raised about diversion programs is that they may result in net widening which is “a phenomenon whereby a program is set up to divert youth away from an institutional placement or some other type of juvenile court disposition, but, instead, merely brings more youth into the juvenile justice system who previously would never have

FIGURE 5-2 Juvenile court processing of criminal delinquency cases, 1996. Source: Stahl et al. (1999:Figure 2).

FIGURE 5-3 Juvenile court processing of petitioned status delinquency cases, 1996. Source: Stahl et al. (1999:Figure 16).

entered” (Shelden, 1999:4). A true diversion program takes only juveniles who would ordinarily be involved in the juvenile justice system and places them in an alternative program.

The array of interventions covered under the term diversion makes it difficult to generalize about them or their effects. Some researchers have found significantly lower recidivism rates among diverted juveniles than among controls who received normal juvenile justice system processing (e.g., Henggeler et al., 1993; Pogrebin et al., 1984). (For an overview of studies discussed in this section, see Table 5-2 .) Other research has found no difference in recidivism rates between juveniles diverted from the juvenile justice system and those who remained in it (Rausch, 1983; Rojek and Erickson, 1982) or more recidivism among diverted juveniles (Brown

TABLE 5-2 Interventions in the Juvenile Justice System: Evaluations of Diversion Programs

et al., 1989; Lincoln, 1976). The variety in findings may be due to the types of juveniles involved and the types of treatment and services provided.

For a diversion program to be successful, it may have to provide intensive and comprehensive services (Dryfoos, 1990); services that include the juveniles' families and take into account community, school, and peer interactions (Henggeler et al., 1993); and use experienced caseworkers (Feldman et al., 1983). Elliott and colleagues (1978) found that whether intervention occurred in the juvenile justice system or in another program, juveniles experienced increases in their perception of being labeled as delinquent and increases in self-reported delinquency. It is even possible that some diversion programs are more intrusive than traditional juvenile justice processing. Frazier and Cochran (1986b) found that juveniles in the diversion program they studied were actually in the system longer and had at least as much, if not more, official intervention in their lives than those not diverted.

One well-studied intervention for both juveniles diverted from incarceration as well as for juveniles at various stages of processing in the juvenile justice system is multisystemic therapy. Multisystemic therapy is a family- and community-based treatment derived from theories and research that trace the development of antisocial behavior to a combination of individual, family, peer, school, and community factors and their interactions. The intervention is not limited to the adolescent or the family but includes work on the intersections between various systems, such as family-school and family-peer interactions. Treatment is individualized to meet the needs of the adolescent and his or her family using empirically based treatment models, such as cognitive behavioral therapies, behavioral parent training, and structural family therapy (Henggeler, 1999). In addition, attention is paid to treatment fidelity through supervision of and support for treatment providers. A study that randomly assigned serious, violent juveniles either to multisystemic therapy or to the usual juvenile justice system processing (Henggeler et al., 1993) found that multisystemic therapy reduced recidivism at 2.4 years after referral to half of that for those who received the usual juvenile justice services. Borduin and colleagues (1995) found that juvenile offenders randomly assigned to multisystemic therapy, at four years after treatment, had better family relations and fewer psychiatric symptoms and were significantly less likely to be rearrested than those randomly assigned to individual therapy. A meta-analysis of family-based treatments of drug abuse found that multisystemic therapy had one of the largest effect sizes of all treatments reviewed (Stanton and Shadish, 1997).

A promising approach for youngsters for whom home-based programs have failed is multidimensional treatment foster care (see, e.g., Chamberlain, 1998; Chamberlain and Mihalic, 1998; Chamberlain and

Reid, 1998). This approach recruits, trains, and supports foster care families to implement a structured, individualized program for each youngster. Juveniles are placed in the foster care family for six to nine months, during which time their appropriate behavior is reinforced, they are closely supervised, and their peer associations are carefully monitored. Foster care families have daily contact with program staff to work out difficulties and review program plans. Juveniles also receive individual skill-focused treatment. Other components of the program include frequent visits with and weekly family therapy for biological parents (or guardians) to prepare them for after care and coordination with school and other needed service systems after their children return to their homes. Chamberlain and Reid (1998) compared chronic delinquent boys (with an average of 13 prior arrests and 4.6 prior felonies) who were randomly assigned to treatment foster care or to group homes in lieu of incarceration. Boys in treatment foster care were more likely to complete treatment and less likely to be rearrested or to spend time incarcerated than boys assigned to the group home.

Victim-offender mediation is one increasingly popular form of diversion. A national survey discovered 94 victim-offender programs dealing with juveniles in 1996, 46 of which were dedicated exclusively to them (Umbreit and Greenwood, 1998). The programs ranged from having 1 to 900 case referrals, with a mean of 136 cases. Referrals to victim-offender mediation are typically for vandalism, minor assaults, theft, and burglary (Umbreit and Greenwood, 1998). The vast majority of mediation cases are first-time offenders. Typically, mediation occurs prior to adjudication. Some pressure appears to be mounting to include more serious cases in mediation programs (Umbreit and Greenwood, 1998). Whether more serious or complicated cases can be handled through mediation remains to be seen.

Studies have consistently shown that victims tend to be more satisfied with the process of mediation than with court processes (Coates and Gehm, 1989; Marshall and Merry, 1990; Umbreit, 1990; Umbreit and Coates, 1992, 1993). This may be because victims are included in the mediation process only if they volunteer to do so. In their quasi-experimental study of four sites in the United States, Umbreit and Coates (1992:12) concluded that for offenders, “participation in mediation appears to not have significantly increased their satisfaction with how the juvenile justice system handled their case.” The study included interviews with victims and offenders who completed the mediation process. Two comparison groups were devised—the first of victims and offenders who had been referred to the mediation process but did not participate and the second victims and offenders who had not been referred to mediation in the same jurisdiction as the mediation sample, and matched on age, race, sex, and offense.

Over 90 percent of mediations resulted in a restitution plan agreed to by both victims and offenders (Neimeyer and Shichor, 1996; Umbreit and Coates, 1992) and significantly more juvenile offenders completed the agreed-on restitution than did those whose restitution was ordered by the court (Umbreit and Coates, 1993).

Findings on recidivism for juveniles who have been part of mediation programs are mixed. Schneider (1986) reported a significant reduction in recidivism among offenders in a mediation program. Other studies have found small but statistically nonsignificant reductions in recidivism among mediation program participants (Marshall and Merry, 1990; Umbreit and Coates, 1993).

Victim-offender mediation programs are one part of a larger diversion movement in juvenile justice that has been gaining attention worldwide —the restorative justice model. Under a restorative justice model, victims are given the opportunity to come face to face with the offender to negotiate restitution. In addition, restorative justice programs keep youth in the community and maintain community safety by community-based surveillance practices designed to limit the opportunities for juveniles to reoffend and strengthen rather than sever their connections with the community. These practices include monitored school attendance, monitored employment attendance, monitored program attendance, supervised community work service, supervised recreation, adult mentors and supervisors, training offenders' families to provide appropriate monitoring and disciplinary practices, day reporting centers, electronic monitoring, house arrest, and random drug testing. Placement in a secure facility is reserved for those juveniles who continue to offend or who pose a high risk to others. (For a more complete discussion of restorative justice, see Bazemore and Umbreit, 1995; Office of Juvenile Justice and Delinquency Prevention, 1998.) The restorative justice model is currently being evaluated in Australia.

On balance, the research on diversion and intensive probation (discussed in below) suggests that some community-based interventions can serve the needs of many juvenile offenders without added danger to the community. There also may be advantages to keeping juveniles in a less restrictive setting. Well-structured and well-run programs with appropriate services have the potential for improving the lives of diverted juveniles and their families and maintaining community safety.

Figures 5-2 and 5-3 , which illustrate juvenile court processing of criminal delinquency and petitioned status delinquency cases, respectively, do not include the percentages of detained juveniles, because reported

detention figures do not differentiate between preadjudication detention and postadjudication detention. Juveniles may be detained at any stage during the court process if it is believed that they pose a threat to the community, will be at risk if returned to the community, or may fail to appear at an upcoming hearing. Children and adolescents may also be detained for evaluation purposes. Juveniles who have been adjudicated delinquent and sentenced to incarceration may also be kept in secure detention until a placement in a long-term facility can be made. In 1996, 18 percent (320,900 cases) 6 of the 1.8 million criminal delinquency cases referred to the court resulted in detention, as did 6 percent (12,700) of the 162,000 status delinquency cases (Sickmund et al., 1998; Stahl et al., 1999). The percentage of criminal delinquency cases that result in detention has remained fairly stable over the past 10 years, and the percentage of status delinquency cases that result in detention has dropped. However, because the overall number of criminal delinquency cases coming to the court has increased, the number of cases that result in secure detention has increased, even though the percentage of cases detained has remained steady. Research consistently shows that juveniles who have been in detention are more likely to be formally processed and receive more punitive sanctions at disposition than those not placed in detention, after controlling for demographic and legal factors, such as current offense and history of past offenses (Frazier and Bishop, 1985; Frazier and Cochran, 1986a; McCarthy and Smith, 1986). Researchers have been unable to determine the variables that affect the initial decision to detain a juvenile, however. For example, Frazier and Bishop (1985), in an analysis of initial detention decisions, could explain less than 10 percent of variance in the decisions. Therefore, there may be unidentified factors related to the initial decision to detain that affect the impact of detention on eventual court dispositions.

It is important to remember that the court statistics do not refer to the number of juveniles detained, but only to the number of cases (in the course of a year, one juvenile may be detained in several cases). Based on one-day censuses of detention centers, it appears that the rate of detention of juveniles increased by 68 percent from the mid-1980s to the mid-1990s (Wordes and Jones, 1998). The average length of detention in the mid-1990s was 15 days (Wordes and Jones, 1998).

Of all juvenile cases resulting in detention in 1996, 26 percent were for person offenses, 38 percent were for property offenses, 21 percent were for public order offenses, 12 percent for drug law violations, and 3 percent

for status delinquency cases (Snyder and Sickmund, 1999). Males are detained at a rate six times higher than females, and blacks are detained at eight times the rate of whites (Wordes and Jones, 1998).

The two generally accepted uses of preadjudication detention are to ensure that a juvenile will show up for his or her hearing and to prevent reoffending prior to adjudication. However, detention is also used as punishment, protection, and as a place to keep juveniles when more appropriate placements are unavailable (Office of Juvenile Justice and Delinquency Prevention, 1997). Intake workers and juvenile judges have a great deal of discretion in deciding whether to place a juvenile in detention. Several studies found evidence that detention rates varied in direct proportion to the availability of detention facilities (Kramer and Steffensmeier, 1978; Lerman, 1977; Pawlak, 1977). Anecdotal evidence suggests that whether a juvenile in crisis is kept in detention or sent to a mental health facility may depend on whether the juvenile's family has health insurance to cover private psychological or psychiatric treatment. The result of the use of detention for such diverse reasons is that a juvenile who has run away from an abusive home may be placed in detention alongside a juvenile awaiting trial for violent crimes.

Detention can be quite disruptive to children's and adolescents' lives. It separates them from their families, friends, and support systems, and it interrupts their schooling. Although some detention centers have many services in place to assess and treat physical and mental health problems and behavioral problems and to provide educational services, the scope and quality of services varies greatly from jurisdiction to jurisdiction. In addition, many detention centers have become overcrowded, jeopardizing their ability to provide services. Nearly 70 percent of children in public detention centers are in facilities operating above their designed capacity (Smith, 1998). Overcrowded conditions have been found to be associated with increased altercations between juveniles and staff and increased injuries to juveniles (Wordes and Jones, 1998). Even under the best of circumstances, providing services to an ever-changing, heterogeneous group of young people can be difficult. The average length of stay in juvenile detention centers is 15 days, but many youngsters may be there for only a few days, while some are there for much longer periods (Parent et al., 1994). For marginal students, even a few days of school missed because of detention may increase their educational difficulties.

The negative effects of being in detention and the overcrowded conditions in many detention centers have led to investigations of alternatives to detention. Table 5-3 summarizes the evaluations of alternatives to detention programs discussed in this section. A study in North Carolina (Land et al., 1998) examined 19 alternatives to detention programs around the state. The programs varied from site to site, but all were characterized

by the following factors: careful screening and interviews for case admission of secure custody-eligible juveniles; intensive monitoring and supervision; small caseloads with individualized attention; strict rules for compliance and curfew; contacts at nights and weekends; verification of compliance at home and school; inclusion of supportive community resources; and rapid placement into secure confinement if needed. Land and colleagues (1998) found the programs to provide less restrictive options to secure detention in a cost-effective manner without compromising public safety. Over three-quarters of the cases served by the alternative programs successfully avoided secure detention. The vast majority (80 to 90 percent) of the cases that failed in the alternative program and were sent to secure detention were for technical program violations, not for new offenses. Less than 5 percent of all alternative placement admissions committed new offenses while in the program.

The Annie E. Casey Foundation began a Juvenile Detention Alternatives Initiative in 1992 (Rust, 1999). Five urban jurisdictions—Cook County, Illinois (Chicago); Milwaukee County, Wisconsin; Multnomah County, Oregon (Portland); New York City; and Sacramento County, California —were awarded grants to establish programs to eliminate the inappropriate or unnecessary use of detention, reduce the number of delinquents who fail to appear for court or who commit a new offense, develop alternatives to secure detention rather than adding new detention beds, and to improve conditions and alleviate overcrowding in secure detention facilities. The final evaluation of the programs in Chicago, Portland, and Sacramento, by the National Council on Crime and Delinquency, was due in 2000. Preliminary indications from the evaluation are that the programs achieved significant reductions in admissions to detention and alleviated overcrowding without increasing failure-to-appear rates or pretrial crime rates (Rust, 1999).

After adjudicatory hearings, cases in juvenile court are scheduled for disposition hearings, in which the sanction is determined. Juveniles may be put on probation, placed in a correctional institution or other out-of-home placement, sent to treatment or other programs, or given some other sanction, such as paying restitution or performing community service. The most common disposition is probation; over half of the cases adjudicated delinquent were placed on probation in 1996; 28 percent of those adjudicated delinquent in 1996 were sent to out-of-home placement. Males were more likely than females to be placed (29 and 22 percent of adjudicated delinquency cases involving males and females, respectively) and females were more likely to be put on probation (53 and 59 percent for males and females, respectively). A higher proportion of cases involving blacks and other races results in out-of-home placement than do cases

TABLE 5-3 Interventions in the Juvenile Justice System: Evaluations of Alternatives to Detention

involving white juveniles (32 percent for blacks and other races, 26 percent for whites in 1996) (Stahl et al., 1999).

Over half of juveniles adjudicated delinquent in juvenile court are put on probation, as are one-fifth of those nonadjudicated (found not guilty). One-third of the cases that do not receive formal juvenile court processing are also placed on probation at intake (Stahl et al., 1999). In 1996, 634,100 criminal delinquent cases and 58,300 status offense delinquent cases resulted in probation. These figures do not include juveniles who were under the supervision of probation departments after serving time in a residential facility. National figures for the latter group are not collected.

Probation is essentially surveillance designed to prevent reoffending, with the threat of punishment and to detect reoffending if it should occur. Surveillance alone may be insufficient to prevent reoffending. Research with adults has found that the most successful probation programs combine both treatment and surveillance (Petersilia, 1997).

The early founders of juvenile courts saw probation as one of the most significant components of the juvenile court system (Schlossman, 1983). Probation provided the opportunity to rehabilitate juveniles in their homes rather than incarcerating them. Probation officers could get

to know the individual juveniles and their families and therefore provide individualized guidance. As with other ideals of the juvenile court, the reality of probation did not always live up to its expectations, either at the beginning of the juvenile courts 100 years ago or today. Nevertheless, probation has remained the overwhelming dispositional choice for adjudicated offenders of juvenile courts since statistics were first kept in 1927 (Torbet, 1996).

There is a great deal of variety in the responsibilities and structure of probation departments from state to state and even within states. In general, juvenile probation departments have three basic functions: intake screening of cases referred to juvenile court, presentence investigations, and court-ordered supervision of juveniles. This section deals only with court-ordered supervision of juveniles who were given probation as their primary disposition. The use of probation officers to supervise juveniles following incarceration is covered in the section on after care; it is not always easy to separate the two conditions, however. The same parole officers may oversee juveniles whose primary sanction was probation (probationers) and juveniles who have been released from incarceration (parolees). Conditions of probation may be similar for both groups of juveniles. Both probationers and parolees may attend the same treatment programs while serving their probation.

There has been little evaluation of traditional probation practices,

with more research emphasis being focused on such alternatives as intensive supervision (Clear and Braga, 1995). Intensive supervision, as its name implies, involves more intense scrutiny and monitoring than traditional probation. Interest in intensive supervision probation has waxed and waned since the 1960s. Spurred by both increasing overcrowding in correctional facilities and the get-tough approach, intensive supervision programs grew in popularity in the late 1980s (Armstrong, 1991). Studies of intensive supervision for adult offenders have not found increased monitoring alone to reduce recidivism. In fact, increased monitoring may detect more cases of technical probation violations than regular probation (MacKenzie, 1997), leading to higher rates of measured reoffending if technical violations are included in recidivism measures.

A study by Land and colleagues (1990, 1992) examined an intensive supervision program for status delinquency cases. Status offenders were randomly assigned to regular probation or to intensive supervision. In addition to frequent visits with the juvenile and his or her family from the counselor (as often as daily at first, then at least weekly thereafter, compared with visits once every 90 days for regular probation), juveniles and their families in intensive supervision were directed to community programs to assist them. Based on individualized assessments and program plans, juveniles in the intensive supervision program were given behavioral objectives to be met and were regularly assessed on their progress. A year after treatment end, juveniles in intensive supervision had significantly fewer criminal delinquency referrals than did those in regular probation. There was no difference between the groups in status offense referrals. As the program matured and became routinized, it appeared to become less effective. Status offenders who entered the program after it had been in existence for 1.5 years were as likely to be referred for criminal delinquency as were those in regular probation. Land et al. (1992) noted that there were fewer referrals to services made in the mature program than occurred when it was new, and that staff received less attention and support after the program was well established. Intensive supervision coupled with treatment and well-supported staff appears to have the potential to keep status offenders who have not already been involved in criminal delinquency from committing criminal delinquent acts.

Most of the intensive supervision probation programs instituted beginning in the late 1980s and throughout the 1990s have been targeted not at status offenders, but at high-risk juveniles for whom community safety demands more intense supervision than can be provided under routine probation (Armstrong, 1991). These intensive supervision programs vary greatly from jurisdiction to jurisdiction. Some include short-term residential placements with intensive community-based services; others rely on frequent contact between the probation officer and the

juvenile. The definition of frequent also varies from daily to weekly, but it is always more frequent than traditional probation.

Several studies have evaluated intensive supervision of probationers. 7 A study in which juveniles were randomly assigned to one of three inhome programs in Detroit, Michigan, or to the state training school (the control group), found no significant differences in recidivism (measured by court appearances for new offenses) or self-reported criminal delinquency among all four groups during the two-year follow-up (Barton and Butts, 1991). The in-home programs cost only one-third the expense of incarceration in training schools. The evaluators concluded that intensive in-home programs were cost-effective and posed no increased danger to the community.

A three-year follow-up of juvenile offenders randomly assigned to regular probation or intensive probation in Contra Costa County, California, found little difference in recidivism (measured by rearrest, court appearances, incarceration, and self-reported offending) between the two groups (Fagan and Reinarman, 1991). Although the intensive program was designed to include more therapeutic programs than regular probation, in practice, the major difference was the number of contacts between probation officers and juveniles—weekly for intensive supervision and monthly for regular probation. The program was originally intended for serious and violent offenders, but many nonviolent, less serious offenders ended up in the program. The authors concluded that regular probation suffices for most juvenile offenders and that intensive supervision should be reserved for serious and violent offenders who have failed under regular probation conditions.

A number of researchers (e.g., Altschuler and Armstrong, 1991; Baird, 1991; Clear, 1991) argue that intensive supervision is warranted only for juveniles at high risk of serious reoffending. Defining which juveniles are high risk and therefore warrant intensive supervision, however, is a complicated and difficult task. Relying solely on the seriousness of the current offense is inadequate, as that alone is a poor predictor of future offending (see, for example, Wolfgang et al., 1972). Judicial judgments of dangerousness have been shown to be quite poor at accurately predicting which offenders are dangerous (Fagan and Guggenheim, 1996). Demonstrating the success or failure of intensive supervision programs may ride on their ability to identify the appropriate group of juveniles to serve.

Incarceration

Deprivation of liberty through incarceration is usually thought to be the most severe sanction that can be meted out by the justice system. 8 Of all juvenile criminal delinquency cases disposed in 1996, 18 percent (320,900 cases) resulted in detention. The type of offenses for which juveniles are detained include not only violent offenses but also property and drug offenses.

The Census of Juveniles in Residential Placement (CJRP), conducted on October 29, 1997, found that nearly 93,000 youngsters under age 18 were held in public or private detention, correctional, and shelter facilities (Gallagher, 1999). The CJRP, which collects individual data on each person under age 21 held in residential facilities, replaced the Children in Custody census, which collected aggregate data on persons under age 21 in each facility biennially from 1971 through 1995. Differences in methodology between the two censuses make direct comparisons of the numbers of juveniles in custody over time problematic. It appears that the numbers of juveniles in custody has grown steadily since 1975 (see Figure 5-4 ). It is impossible to determine, however, how much of the increase from 1995 to 1997 is real and how much is an artifact of the change in method of data collection. Nevertheless, the United States has a high rate of juveniles in custody—368 per 100,000 juveniles (Snyder and Sickmund, 1999)—a rate that is higher than the adult incarceration rate in most other countries (Mauer, 1997).

It is easy to forget that most children who are incarcerated will be out on the streets in a few years or months. What they learn through the juvenile justice system is likely to influence their behavior later. Their access to appropriate education and vocational training and to mental health services may make all the difference between successful reintegration into society and reoffending.

Conditions in juvenile facilities vary greatly, from those in which appropriate educational and other services are provided and staff are well trained to those in which many juveniles spend much of their time in cells with nothing to do, and where facilities are unsafe and unsanitary, services are lacking, and staff are poorly trained and may even be abusive. In 1995, Human Rights Watch (1995) documented physical abuse of juveniles in Louisiana's Tallulah Correctional Center for Youth. The New York Times (1998) documented continuing physical abuse and other problems in this facility in 1998, which “houses 620 boys and young men, age

FIGURE 5-4 Total number of youth under 21 in custody. Source: Data for 1975 to 1991 from Smith (1998); data for 1995 and 1997 from Snyder and Sickmund (1999).

11 to 20, in stifling corrugated-iron barracks jammed with bunks. . . . Meals are so meager that many boys lose weight. Clothing is so scarce that boys fight over shirts and shoes. Almost all of the teachers are uncertified, instruction amounts to as little as an hour a day, and until recently there were no books.” In late 1999, three boot camps in Maryland were closed and top juvenile justice officials lost their jobs after physical abuse of juveniles by staff was found to be widespread ( The Washington Post, 1999). The Arkansas Democrat-Gazette reported in June 1998 that boys in the Central Arkansas Observation and Assessment Center seldom saw daylight, were given clean clothing only every other week, and were subjected to the unsanitary condition of raw sewage backing up into shower drains whenever toilets were flushed (Coalition for Juvenile Justice, 1999).

In contrast, some facilities provide a wide range of programs in well-kept settings. The Giddings State Training School in Texas has modern educational facilities that are wired for the Internet and offers high school equivalency classes and vocational training. The facility has intensive treatment for drug abusers, sexual offenders, and capital offenders. The facilities are tended by the residents and are clean and well kept (Coali-

tion for Juvenile Justice, 1999). 9 Ferris School in Delaware, after years of fighting lawsuits, was rebuilt and restructured in the mid-1990s. Education is now stressed over punishment there. In fact, Ferris is the only education program in a juvenile secure care facility in the Mid-Atlantic region to receive accreditation (Coalition for Juvenile Justice, 1999).

Even in well-kept settings, however, some misbehaving youth are punished through isolation or deprivation of privileges. The panel could find no studies of the impact of these punishments on the behavior of juveniles either during incarceration or upon release.

The only national study of conditions of confinement in juvenile correctional facilities (Parent et al., 1994) found substantial and widespread problems concerning amount of living space, health care, security, and control of suicidal behavior. Crowded conditions are widespread in juvenile training and reform schools. In 1995, 68 percent of juveniles in public facilities and 15 percent in private facilities were in facilities that housed more juveniles than they had been designed to house (Smith, 1998). Overcrowded conditions are not only unpleasant, but also may be dangerous—both staff and juveniles have higher rates of injury in overcrowded facilities (Parent et al., 1994). Injury rates were also higher for both juveniles and staff in facilities in which living units were locked 24 hours a day, regardless of the percentage of youth incarcerated for violent crimes, than in less secure facilities. The study found that large dormitory sleeping arrangements were accompanied by high rates of juvenile-on-juvenile injuries. Single sleeping rooms were related to suicidal behavior, with the rate of suicide attempts increasing as the percentage of juveniles in single rooms increased (Parent et al., 1994). Apparently, rooms housing two or three juveniles are preferable to either single rooms or large dormitories.

Parent and colleagues (1994) also found serious deficiencies in health care for incarcerated juveniles. Health care screenings, which national standards say should occur within one hour of admissions, and appraisals, which should occur within seven days of admission, are often not completed in a timely manner. Timely screenings are important to identify injuries and acute health problems that may require immediate attention. Timely health appraisals are important to identify health care needs that require treatment during confinement and to prevent the spread of infectious diseases. In addition, the Parent et al. study found that health care screenings may be performed by staff with no health training. This was a particular problem in detention centers, where one-third of juveniles were screened by untrained staff.

Parent et al. (1994) also examined education, recreation, and mental health programming in juvenile facilities. They found that, in the early 1990s, 65 percent of juveniles in public facilities were in institutions with current court orders or consent decrees related to programming deficiencies. They could not determine which areas of programming were specified in the orders and decrees, however. Nevertheless, this finding points to widespread inadequacies in services available to juveniles held in residential facilities.

Educational Needs and Services

Many children and adolescents involved in the juvenile justice system have fared poorly in school and have significant educational needs. Although not as well studied as the mental health needs of these youngsters (discussed in the next section), many have not attended school recently and many perform below grade level. In addition, for most incarcerated juveniles, correctional education services are their last exposure to formal education (Dedel, 1997). In site visits made during their study, Parent et al. (1994) received estimates from language teachers in juvenile facilities that 32 percent of their students read at or below 4th-grade level, 27 percent at 5th-or 6th-grade level, 20 percent at 7th- or 8th-grade level, and 21 percent at or above 9th-grade level. A Massachusetts state court decision ( Green v. Johnson, 513F. Supp. 965, 968 D. Mass., 1981) estimated that 50 to 80 percent of children in juvenile facilities were handicapped under the definitions in the federal Education for All Handicapped Children Act.

The Parent et al. (1994) study found that nearly all juveniles are held in facilities that provide some kind of educational programming: 95 percent of juveniles in detention centers had access to educational programming, as did 97 percent in training schools, and 96 percent in ranches, camps, or farms. 10 The quality of the educational programming, however, appeared to vary greatly from site to site. The American Correctional Association standards recommend that educational programs in juvenile facilities use state-certified teachers, have a maximum student-to-teacher ratio of 15:1, and assess the educational status of juveniles to develop individualized educational plans. Only 55 percent of training school residents and 29 percent of ranch, camp, or farm residents are in facilities that meet all the recommended educational standards. The

Parent et al. (1994) study did not have access to information on educational outcomes to assess the effects of the educational programming on residents. Dedel (1997) reports that 75 percent of students in custody advanced less than a full grade level per year while in custody.

Mental Health Needs

A number of studies of incarcerated juveniles have found the prevalence of psychiatric disorders, diagnosed from structured interviews or clinical assessments, to be three to five times higher than in the general population of young people (Chiles et al., 1980; Davis et al., 1991; Eppright et al., 1993; Hollander and Turner, 1985; Lewis et al., 1987; McManus et al., 1984a; McManus et al., 1984b; Miller et al., 1982; Shelton, 1998; Steiner et al., 1997; Timmons-Mitchell et al., 1997). Conduct disorder was present in over 80 percent of incarcerated youth (Davis et al., 1991; Eppright et al., 1993; Hollander and Turner, 1985; Timmons-Mitchell et al., 1997). This finding is not surprising because the criteria for a diagnosis of conduct disorder includes delinquent and criminal behavior, such as truancy, arson, theft, breaking and entering, and assault. Other psychiatric disorders found among detained and incarcerated young people included depressive disorders, attention deficit hyperactivity disorder (ADHD), and psychotic disorders. Studies also report many times more personality disorders, especially borderline personality disorder, among incarcerated youth than among the general population of young people. At least half of juvenile detainees also report substance abuse (Davis et al., 1991; Timmons-Mitchell et al., 1997).

A study of randomly selected incarcerated boys and girls in Ohio found that girls displayed significantly more mental health problems (other than conduct disorder) than boys—84 percent of girls had a mental health disorder compared with 27 percent of boys. Studies of adult incarcerated women suggest that psychiatric disorders are also much more prevalent in adult incarcerated women than in either adult incarcerated men or the general population (Jordan et al., 1996; Teplin et al., 1996).

Juvenile offenders have been found to have a high rate of drug and alcohol use. In 1998, the Arrestee Drug Abuse Monitoring Program found illegal substances in the urine of 40 to over 60 percent (depending on the city) of male juvenile arrestees (National Institute of Justice, 1999). An analysis of the National Youth Survey found a strong correlation between serious substance use and serious delinquent behavior (Johnson et al., 1993): 23 percent of juveniles who reported involvement in multiple serious crimes were current cocaine users, compared with 3 percent of nondelinquents. Drug and alcohol use often coexist with other mental health problems (McBride et al., 1999).

Young people with substance abuse or mental health disorders in juvenile correctional facilities have little chance of receiving either an adequate assessment or appropriate treatment. Furthermore, treatment is very rarely coordinated with services after youth are released. Longitudinal evidence suggests that delinquents with serious psychiatric disorders are less likely than others to desist from delinquency in their late teens or twenties (Hare et al., 1988; Robins, 1974). The lack of adequate mental health treatment in the juvenile correctional facilities represents a lost opportunity for these juveniles.

Evaluations of Treatments in the Juvenile Justice System

Although no treatment program works 100 percent of the time for 100 percent of the participants, there are treatment programs that have been found to reduce the rate of future offending, whereas some get-tough sanctions have been found to increase recidivism. The panel did not have the resources to examine all the literature relevant to treatment of juveniles under the control of the juvenile justice system (Lipsey and Wilson, 1998, alone found 200 experimental or quasiexperimental studies for their meta-analysis). Rather, we relied on published reviews (Krisberg and Howell, 1998; MacKenzie, 1997; Petrosino et al., 2000) and several metaanalyses (Gottschalk et al., 1987; Lipsey, 1995; Lipsey and Wilson, 1998; Mayer et al., 1986).

Lipsey and colleagues have performed several meta-analytic studies of treatments for juvenile offenders (Lipsey, 1995; Lipsey and Wilson, 1998). Meta-analysis allows the quantitative findings of many studies to be combined and statistically analyzed. Differences in study methods and procedures can be controlled for statistically, allowing a pattern of treatment effects across studies to be revealed. Effect size is the usual measure employed in meta-analyses. It should be noted that effect size is influenced as much by the nature of the comparison group as by the treatment programs being evaluated. Meta-analyses can be an extremely important aid to identifying good treatment programs, but their use cannot overcome problems of poor research design. In fact, when metaanalyses are not based on rigorous criteria for inclusion, the results can be misleading.

In a meta-analysis of 400 research studies of programs for delinquency reduction, Lipsey (1995) found that the average effect across all the programs studied was a 10 percent reduction in delinquency among participants in the program compared with a control group. However, there was wide variety from program to program, with some studies finding increased delinquency among participants in certain programs and studies of other types of programs finding a 30 percent improvement in the

program participants over the control group. Overall, Lipsey (1995) found that programs that targeted behavioral change in a relatively structured and concrete manner had a greater effect on reducing delinquency than programs that targeted psychological change through traditional counseling or casework approaches. Other meta-analyses have similarly found that cognitive-behavioral, skill-oriented, and multimodal programs have the best effects (Gottschalk et al., 1987; Mayer et al., 1986). This pattern held for programs conducted under the auspices of the juvenile justice system and for those run by other institutions.

Of particular concern are programs that increased delinquency. Lipsey (1995:74) says about them:

Most notable are the deterrence approaches such as shock incarceration. Despite their popularity, the available studies indicate that they actually result in delinquency increases rather than decreases. Unfortunately, there are distressingly few studies in this category, making any conclusions provisional. The studies we do have, however, raise grave doubts about the effectiveness of these forms of treatment.

A systematic review of evaluations of deterrence programs, such as Scared Straight, that involve exposing youngsters who have come in contact with the juvenile justice system to prison life and adult inmates was undertaken by Petrosino and colleagues (2000). None of the nine evaluations that involved random assignment of youngsters to the treatment or control groups found any positive effect on future delinquency. Seven of the studies found that the effects of the program were harmful, that is, youngsters in treatment were more likely to commit additional delinquent acts than were those in the control group who received no treatment.

Lipsey (1995) also found that the length of the program and how well it was planned and delivered affected how well the program reduced delinquency. Programs that were monitored to ensure that they were delivered as planned had larger effects than programs that were not monitored. More of an otherwise effective program appears to be better than less. In general, Lipsey (1995) recommended that programs should have 100 hours or more of total contact with the juvenile, delivered at two or more contacts per week, over a period of 26 weeks or longer. Because the average length of stay for juveniles in residential placement is less than four months (Smith, 1998)—significantly shorter than 26 weeks—it may be difficult to provide programs over a sufficient length of time to make a difference for many youth in residential placement. Continuity of programming after release may be a way to increase effectiveness. It should be noted, however, that Lipsey and Wilson (1998) found that characteristics of effective programming both inside and outside institutions differed.

Lipsey and Wilson (1998) performed a separate meta-analysis on 200 studies of all the experimental or quasi-experimental studies of the effects of interventions with serious juvenile offenders. They summarize their results as follows (Lipsey and Wilson, 1998:229-230): “The average intervention effect for these studies was positive, statistically significant, and equivalent to a recidivism reduction of about 6 percentage points, for example, from 50 percent to 44 percent (mean effect size = 0.12). The variation around this overall mean, however, was considerable.”

Lipsey and Wilson (1998:330) note that the primary lesson of their study is “that sufficient research has not yet been conducted on the effects of intervention with serious juvenile offenders.” They found that the dimensions that characterized good programs for incarcerated offenders differed from those for nonincarcerated offenders. Therefore, they searched separately for effective programs in these two settings. Programs that provided interpersonal skills and insight into their own behavior and programs that placed offenders into community-based teaching family homes were most consistently effective for incarcerated offenders. Individual counseling, teaching of interpersonal skills and insight into their own behavior, and behavioral programming were most successful for the nonincarcerated offenders.

Of course, no program is effective for all offenders. A variety of attempts have been made to match offenders to programs on the basis of assessed needs. Whether such matching can be the basis for improved results has been the subject of some debate (see, e.g., Andrews et al., 1990b; Lab and Whitehead, 1990). Because effective programming can be costly, benefits should be carefully determined and reported (MacKenzie, 1997).

Although studies have focused on recidivism rates for treatment programs, there seem to be few credible studies of effects of policies in residential facilities, such as television viewing, recreational privileges, or the use of isolation or of lockups that occur in training or reform schools designed for juveniles. Many juvenile correction systems employ a behavior modification strategy tying rewards (e.g., to purchase special food, watch TV, use the library, play athletic games) to compliance. These systems also typically link punishments to misbehavior. Although designed to teach inmates better behavior, empirical evidence has demonstrated that the strategy may backfire with some populations (Deci, 1971; Kruglanski et al., 1971; Lepper et al., 1997). Because the punishments used in reformatories involve physical force, lockups, isolation, and a variety of forms of deprivation, some juveniles may be learning that force is appropriate to obtain compliance. Studies are needed to learn about effects of lockups and of behavior modification strategies in order to

ensure that the juvenile justice system is not creating or exacerbating problems it is designed to alleviate.

After Care and Reintegration

Following incarceration, most juvenile offenders will return to the communities from which they came. As with the adult system, juvenile corrections officials have a poor record of controlling juvenile parolees released from secure detention into the community. As in the adult system, concerns have been raised that heavy caseloads and poor quality and delivery of services affect offender rehabilitation and public safety. This situation has led to the testing of models of intensive parole supervision and after care (Altschuler and Armstrong, 1994a). Knowing how difficult it is for all individuals to make major changes in complex behavior patterns, it should not be surprising that juvenile offenders may need assistance if they are to avoid reoffending. Even for those who received appropriate treatment programs while incarcerated, change may be difficult to maintain when they return to their old environment. For juveniles to succeed in reintegrating into the community, more emphasis may have to be placed on continued treatment rather than merely on surveillance and monitoring.

Intensive after-care programs have evolved over the past 10 years out of the adult supervision probation movement and juvenile intensive supervision probation programs (Altschuler and Armstrong, 1994a). The intensive after-care model, as designed by Altschuler and Armstrong (1994b), represents a reintegrative alternative to confinement and release into the community under traditional parole supervision. From initial confinement to transition into the community, the goals of intensive after-care programs are to prepare the offender for prosocial adjustment to life in the community and in social networks (e.g., family, peers, school, and employment). The after-care component combines surveillance and control of offenders in the community with the provision of treatment and services based on the offender's needs and an assessment of factors that might increase his or her chances of reoffending. The combination of treatment and surveillance is critical to the intensive after-care model. Reviews of the research suggest that community corrections programs that emphasize surveillance and control only may not be enough (Byrne and Brewster, 1993; Petersilia, 1997; Petersilia and Turner, 1993). Community-based corrections programs that balance the provision of treatment and rehabilitation services (i.e., individual and family counseling, drug treatment, and vocational or employment training and assistance) with offender surveillance and monitoring (i.e., drug testing, curfew, and electronic monitoring) should be carefully evaluated to learn what mix is effective.

Very few studies have been conducted that evaluate the effectiveness of juvenile corrections programs; even less is known about how juveniles adjust to the community when they are released from secure confinement. Although there is evidence that rehabilitation programs, in general, can work (Andrews and Bonta, 1994; Andrews et al., 1990a, 1990b; Gendreau and Ross, 1979; Palmer, 1975), more information is needed on what programs work best for whom.

There is evidence that elements of the confinement experience increase the probability of failure upon release (Byrne and Kelly,1989; Hagan, 1991; National Research Council, 1993; Shannon, 1988). Moreover, researchers have found that the provision of services to offenders may be more effective when administered in the community rather than in secure facilities (Lipsey, 1992). Some research has also shown that length of confinement has no effect on rearrest rates of juvenile parolees (Beck and Shipley, 1987; Cohen and Canela-Cacho, 1994; National Research Council, 1993).

The most promising programs and strategies for use in juvenile after-care programs include those that address the needs and risk factors for reoffending of high-risk juveniles leaving secure confinement. Lipsey and Wilson's (1998) meta-analysis suggests that programs that provide interpersonal skill training (i.e., social skills training), behavioral contracting, and cognitive-behavioral individualized counseling are best at reducing recidivism rates for noninstitutionalized youth. These are the types of treatment and rehabilitation programs offered in many intensive after-care programs.

There have been very few scientifically rigorous evaluations of juvenile after-care programs. In addition, intensive supervision programs often mix probationers and parolees, making it difficult to separate possible different effects on juveniles diverted from incarceration and on those released from incarceration. Generally, these studies have failed to find consistent evidence of the effectiveness of juvenile intensive supervision programs and after care in reducing reoffending (Altschuler et al., 1999). As noted in the discussion of probation, intensive supervision may simply bring more technical violations of parole conditions or other delinquent acts to the attention of authorities than would be the case under routine parole or probation. Outcomes in addition to rearrest or reincarceration should be considered in evaluating program success. Intensive supervision after-care programs often include goals similar to those found in the restorative justice model, such as restitution and reintegration. How successful programs are in having juveniles pay fines, complete victim restitution conditions, attend school, or find a job are some of the other areas that could be considered in addition to recidivism measures. Evaluations of after-care programs are summarized in Table 5-4 .

TABLE 5-4 Interventions in the Juvenile Justice System: Evaluations of After Care Programs

Some evaluations of intensive after care have indicated moderate benefits. For example, an evaluation of the Philadelphia Intensive Probation Aftercare Program, in which serious juvenile offenders in one institution were randomly assigned to intensive after care or typical probation, found that, although the same proportions of youths in after care as without after care had been arrested, those in after care had fewer arrests (Sontheimer and Goodstein, 1993). The Philadelphia youth in the intensive probation group who were arrested were significantly less likely to be convicted or reincarcerated than those assigned to typical probation. Youth participating in juvenile after care as part of the Maryland Drug Treatment Program performed no better in terms of alleged or adjudicated offenses than those in a control group; however, after-care participants did have significantly fewer new crimes against persons than controls (Sealock et al., 1995, 1997).

In an evaluation conducted by Greenwood and colleagues (1993) of two intensive after-care programs implemented in Detroit and Pittsburgh,

youth randomly assigned to either intensive after care or traditional supervision performed equally well when compared on the proportion of arrests, self-reported offending, and drug use during a 12-month followup period. Deschenes et al. (1996) conducted a quasi-experimental evaluation of youth participating in a program that combined an alternative to traditional residential confinement (three months of participation in a wilderness camp) with placement in intensive after-care supervision (treatment and surveillance) upon release. When compared with youth placed in a traditional residential facility (the control group), program participants did no better on measures of arrest and self-reported drug use. Program participants did, however, report less involvement in drug selling than the control group.

Other studies show less positive findings. Minor and Elrod (1990) found no significant differences in self-reported or officially recorded delinquency overall, although juveniles in intensive supervision with extensive offending histories had significantly fewer offenses during an

18-month follow-up than controls with similar backgrounds. In an experimental study conducted by Barton and Butts (1990), juveniles randomly assigned to intensive supervision had more delinquency charges than those randomly assigned to the control group, but these charges were less severe. When only criminal charges were considered, the two groups had similar levels of charges. Both groups also had similar levels of self-reported reoffending.

This research is far from conclusive. It seems clear that delinquent juveniles require more than intensive surveillance and control to affect rates of future offending. Determining the appropriate amount and type of treatment and services is clearly an issue in need of further research and clarification. Change among delinquents may involve some backsliding. Relapse is known to be part of other forms of habit change (e.g., smoking, drinking, and drug use) and relapse prevention has become a standard part of drug and alcohol treatment programs (Institute of Medicine, 1990, 1997).

No clear evidence shows whether services or treatment are better received in the community or in secure confinement. As for program content, more research is needed that untangles effects attributable to intensive supervision from those of treatment and rehabilitation provided along with the supervision. It is also unclear from existing intensive supervision evaluations which specific rehabilitation and treatment programs are effective and for whom (Altschuler et al., 1999). Several intensive after-care programs are currently being evaluated through grants from the Office of Juvenile Justice and Delinquency Prevention.

JUSTICE SYSTEM INVOLVEMENT AND EMPLOYMENT

Being caught by the police and caught up in the juvenile or criminal justice systems are especially hazardous for youth from disadvantaged backgrounds, because becoming involved in crime can produce not only future criminality, but also later problems in finding employment. These problems can be further conceptualized in terms of a process of “criminal embeddedness” (Hagan, 1993; Hagan and McCarthy, 1997).

For most individuals, the key to a successful transition from adolescence to adulthood is finding a job, and this involves social embeddedness. The personal contacts of individuals, friends, and families and the network of relations that flow from these contacts are important sources of social capital used in finding jobs and making job changes (Coleman, 1990; Granovetter, 1974). Youth from advantaged class backgrounds are more likely than others to have the social capital that derives from being socially embedded in job networks. This embeddedness facilitates finding and changing jobs.

However, just as early employment contacts can enhance the prospects of getting a job and subsequent occupational mobility, contacts with crime and the justice system seem likely, in a converse way, to increase the probability of unemployment. For example, criminal involvements of family and friends are more likely to integrate young people into the criminal underworld than into referral networks of legal employment. And youthful delinquent acts and justice system supervision are likely to further distance juveniles from the job contacts that initiate and sustain legitimate occupational careers. Criminal embeddedness is a liability in terms of prospects for stable adult employment. This embeddedness is compounded by the effects of becoming officially labeled and known as a criminal offender, especially in distressed community settings in which few jobs are available in any case.

These risks are reflected in a recent analysis of juveniles tracked from childhood through adulthood in a London working-class neighborhood (Hagan, 1993). This study reveals that intergenerational patterns of criminal conviction make youth especially prone to subsequent delinquency and adult unemployment (Hagan, 1993; Hagan and Palloni, 1990; Ward and Tittle, 1993). Other studies similarly show that working-class males with conviction records are uniquely disadvantaged in finding and maintaining employment (Laub and Sampson, 1995; Schwartz and Skolnick, 1964), and that a criminal arrest record can have negative effects on employment as much as eight years later (Freeman, 1992; Grogger, 1995; Thornberry and Christenson, 1984). Conviction and imprisonment have also been shown to have a permanent impact on legal earnings (Freeman, 1992; Hunt et al., 1993; Needels, 1996; Sampson and Laub, 1993). For example, Freeman's (1992) analysis of the Boston Youth Survey indicated that youths who were incarcerated had exceptionally low chances of employment; similarly, his analysis of the National Longitudinal Survey of Youth revealed that men who had been in jail or on probation experienced “massive long-term effects on employment ” (Freeman, 1992:217). Sampson and Laub (1993) found that unstable employment and a higher likelihood of welfare dependence characterized the lives of the delinquent boys in a prospective sample of 500 delinquents and 500 non-delinquents. Moreover, juvenile incarceration was found to have an indirect effect on the incidence of future crime, because “incarceration appears to cut off opportunities and prospects for stable employment [and] job stability in turn has importance in explaining later crime” (Laub and Sampson, 1995:256). Other data indicate that while more than half of state prisoners are employed before going to jail, only about a fifth of those on parole are employed following imprisonment (Irwin and Austin, 1994).

It is therefore important to emphasize the role of the police, courts,

and prisons in the development of these youthful criminal careers. Sullivan (1989) found in the more stable white neighborhood he studied that parents, using their well-developed social networks and resulting social capital, “sought to manipulate the system—and were often successful in doing so—by means of money and personal connections” (p. 196). In contrast, in both of the minority neighborhoods Sullivan studied, youth began to move further away from home to commit violent economic crimes and encountered more serious sanctions when they did so. These crimes produced short-term gains, but they also separated minority youths from the legitimate labor market, stigmatizing and further damaging their social and cultural capital in terms of later job prospects. Of the minority youth, Sullivan writes that “their participation in regular acts of income-producing crime and the resulting involvement with the criminal justice system in turn kept them out of school and forced them to abandon their earlier occupational goals” (p. 64). Court appearances and resulting confinements removed these youth from whatever possibility for inclusion in job referral networks school might provide and placed them in prison and community-based crime networks that further isolated them from legitimate employment.

It is not surprising, therefore, that Sullivan's work and other recent ethnographies of poverty and crime make the point that the material gains associated with embeddedness in the drug economy usually prove to be transitory. For example, in Getting Paid, Sullivan (1989) argues that although participation in the underground economy may yield temporary material gains, over time it becomes a limitation, and those involved “age out of youth crime and accept . . . low wage, unstable jobs” (Sullivan, 1989:250). Joan Moore, in Going Down to the Barrio, suggests a similar conclusion when she observes that “the very culture of defiance at best dooms the boys to jobs just like their fathers hold,” serving in the end “to keep working-class kids in the working class” (Moore, 1991:42). Felix Padilla echoes this theme in his ethnography of The Gang as an American Enterprise, noting that “instead of functioning as a progressive and liberating agent capable of transforming and correcting the youngsters' economic plight, the gang assisted in reinforcing it” (Padilla, 1992:163). In each of these ethnographies and in the related studies noted earlier, it is embeddedness in crime networks, including the juvenile and the criminal justice systems, that seals the economic fate of these young people.

Thus a number of studies now confirm that as time spent in prison increases, net of other background factors and involvements, the subsequent likelihood of disengagement from the legal economy increases. This is not surprising, given that even those in disadvantaged neighborhoods who do not have criminal records have difficulty finding employment. Hagan (1991), using data from a 13-year panel study, and Grogger (1995),

analyzing arrest data from the California Justice Department's Adult Criminal Justice Statistical System and earnings records from the California Employment Development Department, have demonstrated that even being charged and arrested are detrimental in the near term for occupational outcomes and earnings.

GIRLS IN THE JUVENILE JUSTICE SYSTEM

As discussed in Chapter 2 , arrests of girls, although smaller in number than those of boys, have increased at a faster rate. The police are not the only justice system agency to see an increase in the number of female juvenile offenders; increases also extend to juvenile courts. Between 1987 and 1996, the number of cases involving female juveniles that were petitioned to juvenile court increased 76 percent, while the number involving male juveniles increased 42 percent. Girls, however, still only made up a little over 20 percent of juvenile court criminal delinquency cases and about 40 percent of status delinquency cases in 1996 (Stahl et al., 1999).

The nature of the offenses for which girls are seen in juvenile court has changed over time. Girls are increasingly referred to juvenile court for violent crimes. The rate for violent female juvenile court cases increased 127 percent from 1987 to 1996. During the same period, the rate for male juveniles increased 68 percent. Property offense case rates also increased from 1987 to 1996 by 37 percent for girls and 4 percent for boys. Drug case rates, in contrast, increased faster for boys (123 percent) than for girls (100 percent) (Stahl et al., 1999).

The handling of girls in the juvenile justice system also appears to have changed somewhat over the past 30 years. Studies done during the 1970s found that girls were considerably more likely than boys to be referred to juvenile court for status delinquency offenses (e.g., running away from home, incorrigibility, truancy). Girls were also more likely than boys to be formally processed, detained, and sentenced to incarceration for status delinquency offenses (see, e.g., Andrews and Cohn, 1974; Chesney-Lind, 1973; Conway and Bogdan, 1977; Datesman and Scarpitti, 1977; Gibbons and Griswold, 1957; Pawlak, 1977). However, girls were less likely to be arrested for criminal delinquency offenses, to be formally charged if arrested, or to be incarcerated (Chesney-Lind, 1973; Cohen and Kluegel, 1979; Datesman and Scarpitti, 1977). More recent studies have equivocal findings, with some showing differences in treatment of males and females (Pope and Feyerherm, 1982; Tittle and Curran, 1988) and some showing no differences (Clarke and Koch, 1980; Teilmann and Landry, 1981; U.S. General Accounting Office, 1995c) with regard to dispositions of status delinquency cases.

Criminal delinquency cases involving females, however, are less likely

than cases involving males to be disposed of by detention or long-term confinement in secure facilities, after controlling for severity of offense and previous offenses (Bishop and Frazier, 1992). When contempt status (i.e., when the delinquency charge is for violation of a previously ordered condition of supervision) was introduced as a variable and interaction effects examined, however, Bishop and Frazier (1992) found that girls' risk of incarceration was substantially elevated in cases of contempt, whereas contempt had only a small impact on boys' risk of incarceration. In many cases, for girls, the original charge for which they were held in contempt was a status offense. In essence, for girls, the contempt charge means they are essentially treated as a criminal delinquent for a status offense, receiving harsher punishment for the contempt charge than for other criminal delinquency charges. Bishop and Frazier (1992:1183) reported that “the typical male offender who is not in contempt has a 3.9 percent probability of incarceration. The risk is increased only slightly, to 4.4 percent, when he is found in contempt. In sharp contrast, the typical female offender not in contempt has a 1.8 percent probability of incarceration, which increases markedly to 63.2 percent if she is held in contempt.”

In a study conducted on a geographically diverse, longitudinal (nine years of data) sample of approximately 36,000 court referrals, Johnson and Scheuble (1991) found that, after controlling for the nature of the offense, past offending, and other background variables, girls were more likely than boys to have their cases dismissed and boys were more likely than girls to be put on probation or to be locked up.

Very few programs address the unique needs and problems of female juvenile offenders. In a meta-analysis of juvenile prevention and intervention programs, the author reported that only 8 percent of the programs primarily served girls (Lipsey, 1992). When females get involved in the juvenile justice system, there are fewer options for them than for boys. Although delinquent girls share some problems with delinquent boys, they also have unique problems, including higher rates of childhood sexual victimization and depression (see Chapter 3 ) and greater, more central parenting roles. Yet programs are rarely tailored specifically for the needs of girls and their experiences.

RECENT LEGISLATIVE CHANGES AFFECTING THE JUVENILE COURT

In response to the rise in violent crime by juveniles during the late 1980s and early 1990s, states around the country made changes to their juvenile justice laws. These changes mainly involved making it easier to transfer juveniles to adult court, changing sentencing structures, and modifying or removing traditional confidentiality provisions. Between

1992 and 1997, 47 states and the District of Columbia changed their laws in at least one of these ways. State laws have also been changed in two other areas: regarding the rights of victims of juvenile crimes and in correctional programming. Table 5-5 indicates the type of changes made in each state between 1992 and 1997.

Ease of Transfer to Criminal Court

Determining which children belong in juvenile court has been an issue since the court's beginnings (Tanenhaus, 2000). There are a number

TABLE 5-5 How States Have Stiffened Laws Relating to Juvenile Justice in 1992-1997, by Type of Change

of ways in which courts have excluded certain juveniles from juvenile court jurisdiction. These include setting an age above which the juvenile court no longer has jurisdiction and various mechanisms for transferring juveniles under that age to criminal court.

Maximum and Minimum Ages of Jurisdiction

State laws set a maximum age for adolescents for which the juvenile court has original jurisdiction. This age varies by state and sometimes by offense. In Connecticut, New York, and North Carolina, the highest age of juvenile court jurisdiction in criminal delinquency cases is 15; that is, anyone age 16 and older is handled in the criminal (adult) court. In Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, New Hampshire, South Carolina, Texas, and Wisconsin, juvenile court jurisdiction applies through age 16. In the remaining states and the District of Columbia, the highest age of jurisdiction is 17 (Griffin et al., 1998). Assuming that children under a certain age cannot be responsible for their behavior, 15 states specify the lowest age for juvenile court jurisdiction. In North Carolina, the lowest minimum age is 6 years; it is 7 in Maryland, Massachusetts, and New York; 8 in Arizona; and 10 in Arkansas, Colorado, Kansas, Louisiana, Minnesota, Mississippi, Pennsylvania, South Dakota, Texas, Vermont, and Wisconsin (Snyder and Sickmund, 1999). In practice, very few children under the age of 10 appear before the juvenile court for delinquency charges.

Lowering the maximum age of juvenile court jurisdiction is one of the most drastic steps a state can take, because it moves an entire age group of adolescents into the adult system. In recent years, only three states have changed their laws to lower the maximum age of juvenile court jurisdiction. In 1993, Wyoming dropped its maximum age from 18 to 17. In 1995, New Hampshire and Wisconsin lowered their maximum ages from 17 to 16 (Torbet et al., 1996). Although it is difficult to determine exactly how many juveniles these changes affected, 17-year-olds accounted for 24 percent of the arrests of all those under 18 in 1998. Therefore, moving 17-year-olds to the criminal justice system could reduce the case flow in the juvenile system by as much as one-fourth. The fact that so few states have chosen this option suggests that legislative concern has been focused on serious and violent crime rather than all juvenile crime (Dawson, 2000).

Transfer Mechanisms

From the inception of the juvenile court, juvenile court judges have had the discretion to waive jurisdiction to the criminal court. These waivers generally fit one of three case types: serious offense, extensive

juvenile record, or juvenile near the age limit. In the first case, the offense with which the juvenile is charged is so serious that the sanctions available to the juvenile court are felt to be insufficient. These cases usually involve violent crimes, most often murder. The second type of case involve juveniles with extensive histories of arrests and juvenile court sanctions who are deemed unable to benefit from juvenile court. In the third type of case, the juvenile is very close to the age limit of the juvenile court's jurisdiction. These cases are waived because the juvenile court would not have jurisdiction over the particular youth for a long enough period of time or because the juvenile is thought to be appropriate for adult court (Zimring, 1998).

All states have some mechanism for treating juveniles, under certain conditions, as adults (Torbet and Szymanski, 1998). How the decision to transfer is made is governed by state law and therefore varies from state to state. The state laws, including the District of Columbia, use one or more of the following methods to place a child in the adult criminal court: judicial waiver, prosecutorial direct file, and statutory exclusion. Judicial waiver, in which the transfer decision is left to the discretion of the juvenile court judge, is the traditional method that juvenile courts have used for transfer. Statutory changes in recent years have removed some of the judicial discretion and given it to either the prosecutor, through direct file, or to the state legislature, through statutory exclusions.

During the 1990s, most states made it easier to transfer juveniles to adult court (Torbet and Szymanski, 1998). The most common ways in which state laws were changed were by adding offenses that allow or mandate transfer to criminal court and lowering the age at which certain juveniles could be tried in criminal court.

Judicial Waiver. Most states and the District of Columbia have laws that permit juvenile court judges to waive jurisdiction from the juvenile court to the criminal court under certain conditions. The transfer decision is up to the juvenile court judge. There are three types of waiver proceedings: discretionary waiver, mandatory waiver, and presumptive waiver. There is also a provision known as reverse waiver, as well as a special transfer category described as “once an adult, always an adult.”

In all, 46 states give juvenile court judges the discretion to decide whether a matter will be tried in the juvenile court or the criminal court (Griffin et al., 1998). Some states require that the prosecutor initiate the process by filing a motion. Other states allow any party or the court to initiate the action.

The discretionary statutes in most states specify criteria similar to those set forth in Kent v. United States (383 U.S. 541, 566-67 [1966]) that should be considered by the juvenile court in deciding whether to transfer

jurisdiction to the criminal court. Generally, the states require the court to consider the following factors in the exercise of its discretion: whether a waiver of jurisdiction would serve the interests of the juvenile and the public; whether public safety requires it; whether there are further services available for the juvenile through the juvenile court system; and whether the child is amenable to rehabilitation (Griffin et al., 1998).

The statutes in 14 states provide for mandatory waivers in cases in which the age and offense criteria are met. Mandatory waiver proceedings are initiated in the juvenile court; however, the involvement of the juvenile court in a mandatory waiver case is minimal. Generally there is a preliminary hearing to determine if the case is one to which the mandatory statute applies. If the threshold criterion is met, the court has the authority only to appoint counsel and to issue interim detention and transfer orders (Griffin et al., 1998); the juvenile court judge may not opt to keep the case in juvenile court. Mandatory waivers leave no room for judicial discretion.

In 15 states, the statutes designate cases in which waiver to the adult criminal court is presumed to be appropriate (presumptive waiver). In these cases, the burden in the waiver hearing is on the child rather than the state. If a child who meets the age, offense, or other criteria specified in the statute fails to show that he or she is amenable to treatment or that his or her retention in the juvenile court does not jeopardize public safety, the case must be transferred to the criminal court.

The statutory criteria that activate presumptive waiver cases fall into three broad categories (Griffin et al., 1998). The first category focuses primarily on the current offense. In the second category, the statutes presumptively require a waiver for an older child, even if the offense for which the child was accused would not otherwise raise the presumption. The third category emphasizes the child's previous juvenile offense history over all other factors.

There are laws in 23 states that provide some mechanism for a child who is being tried in the criminal court to petition to have the case transferred to the juvenile court (Griffin et al., 1998). These provisions are sometimes referred to as reverse waiver. In some states, the statutes authorize the transfer from criminal court to juvenile court even if the case arrived in criminal court by direct file, statutory exclusion, or waiver. Some statutory provisions permit the criminal court to transfer a case to the juvenile court for disposition. Generally when the offense the criminal court is considering is one that was excluded from juvenile court by statute or one in which the prosecutor exercised the discretion to file the case directly in the criminal court, the criminal court's decision is governed by the same considerations and best interests standards as those

that the juvenile court must take into account when deciding whether to waive jurisdiction.

A total of 31 states and the District of Columbia have created a special transfer category which is referred to as “once an adult, always an adult” (Griffin et al., 1998). Most states with such statutes provide that once a child has been convicted in the criminal court, all subsequent offenses require criminal prosecution. In Mississippi, even if a child was not convicted on the first adult-prosecuted offense, he or she will be prosecuted in the criminal court for any subsequent offenses. The California statutes limit the application of the “ once an adult, always an adult” provision to children who are at least 16 years of age and require that any subsequent offenses must be those for which waiver to the adult court would be appropriate.

Prosecutorial Direct File . The statutes in 15 states designate a category of cases that may be tried in either the juvenile court or the criminal court (i.e., the juvenile and criminal courts have joint or concurrent jurisdiction) (Griffin et al., 1998). In those states, the prosecutor has the authority to decide in which court to file the case; the juvenile court judge has no part in the decision. The state laws vary widely regarding the category of the offenses, the age of the child, the seriousness of the offense, and the extent of the child's juvenile offense history that are to be considered in deciding where to file.

Statutory Exclusion. Certain offenses are excluded by statute from juvenile court jurisdiction in 28 states. The laws provide that a child who has reached a certain age and is accused of a designated offense will be tried as an adult in the criminal court. All proceedings against the juvenile occur in the criminal court in the same manner as if the offense had been committed by an adult. These laws focus on the nature of the offense, rather than on the background or needs of the offender. Some states exclude only the most serious offenses, while others exclude offenses based on age. For example, in New Mexico a child who is at least 15 years of age and is accused of first-degree murder is excluded from juvenile court jurisdiction. Mississippi excludes all felonies committed by juveniles who are 17 years of age. Among the offenses excluded by Indiana is the misdemeanor offense of carrying a handgun without a license. The focus in some states is not so much on the nature of the offense and the age of the juvenile as the previous juvenile offense history. Arizona excludes any felony committed by a juvenile who is at least 15 years of age if the juvenile has been previously adjudicated for two or more offenses that would have been felonies if committed by an adult (Griffin et al., 1998).

Sentencing Structure

Traditionally, sanctions imposed by juvenile courts were to be based on the needs of the offender, with an emphasis on the future welfare of the juvenile (Torbet et al., 1996). Juvenile court judges had a great deal of discretion in the disposition they selected for an individual. Sanctions could be indeterminate in length; that is, juveniles could stay under the oversight of the court until they were too old to be under juvenile court jurisdiction. The traditional goal of sanctions was rehabilitative. State legislative changes in recent years have moved the court away from its rehabilitative goals and toward punishment and accountability. Laws have made some dispositions offense-based rather than offender-based. Offense-based sanctions are to be proportional to the offense and have retribution or deterrence as their goal. Strategies for imposing offense-based sentences in juvenile court include blended sentences, mandatory minimum sentences, and extended jurisdiction (Torbet and Szymanski, 1998). All these sentencing options allow for longer sentences than might have been available under traditional juvenile courts.

Blended Sentences

Blended sentences allow the imposition of a combination of juvenile and adult correctional sanctions. 11 The form of the blended sentences varies from state to state. In some states, a juvenile or criminal court may impose a sanction in either the juvenile or the criminal system. In some states, the juvenile or the criminal court may sentence a youth to the juvenile corrections system to be followed by a sentence in the adult corrections system, which may be suspended if the juvenile successfully completes his juvenile sanctions. In a few states (Colorado, Massachusetts, Rhode Island, and Texas), the juvenile court may impose a sentence that goes beyond the age of its jurisdiction, at which point the case is transferred to adult corrections. In Texas, for example, juveniles as young as 10 can be sentenced to as many as 40 years for certain crimes and can be transferred to the adult corrections system any time after they turn 16 if approved by the sentencing court at a transfer hearing, and automatically

at age 21 if the sentence has not been completed. Because these blended sentences are often longer and more severe than those that traditional juvenile courts could impose, the laws frequently provide for more procedural safeguards for the juveniles subject to these penalties (Torbet et al., 1996).

Proponents of blended sentences see them as a less severe option than outright transfer of juveniles to criminal court. Systems that give juveniles a suspended criminal sentence that only becomes operational if they violate the terms of their juvenile disposition, as well as ones that require a reevaluation of the juvenile after a period in the juvenile correctional system, are intended to give juveniles who commit serious offenses a final opportunity to avoid serious criminal sanctions (Dawson, 2000). Some critics of blended sentencing plans note, however, that the juvenile courts do not provide all the same safeguards of the accused's rights as do the criminal courts, even though blended sentencing can result in adult sanctions. Other critics say that blended sentences represent a procedural and substantive convergence between juvenile and criminal courts and erode the rationale for a separate juvenile justice system (e.g., Feld, 1997).

Mandatory Minimum Sentences

Since 1992, a number of states have modified their laws to allow for mandatory minimum sentences for certain serious crimes. In Massachusetts, for example, a juvenile age 14 or older convicted of murder must receive a sentence of at least 15 years for first-degree murder and at least 10 years for second-degree murder (Torbet et al., 1996). Some states have instituted progressive or graduated sanctions that legislatively tie type of disposition to both current offense and past offense history.

Capital Punishment

The United States is among a handful of countries to have legitimized the use of capital punishment for juveniles. In 23 states, capital punishment is an option for offenders who were under the age of 18 at the time of their offense. The Supreme Court upheld the constitutionality of capital punishment for those over age 16 in a decision made in 1989. Only Georgia, Louisiana, Missouri, Oklahoma, South Carolina, Texas, and Virginia have actually executed juveniles. The practice has been condemned by the United Nations Convention on the Rights of the Child, the American Bar Association, the Children's Defense Fund, and the International Convention on Civil and Political Rights.

Extended Jurisdiction

In response to criticisms that the length of commitment to the juvenile system is too short, some states have increased the maximum age of the juvenile court's jurisdiction over offenders. Many states allow a judge to commit a juvenile to be held in the state's juvenile corrections system up to age 21 (even though the court's jurisdiction for hearing and disposing of cases ends when a juvenile is 16 or 17). In California, Oregon, and Wisconsin, the extended age is 25 and in Colorado, Connecticut, Hawaii, and New Mexico, the juvenile jurisdiction extends for the full term of commitment, regardless of age.

Confidentiality

Traditionally, the rehabilitative philosophy of the juvenile court led to protocols to protect the identity of and information about juveniles who came before it. Proceedings were closed to the public. The identity of juveniles was not disclosed. There was limited access to court records and the records could be sealed or expunged after a certain length of time. These measures were aimed at minimizing the stigma attached to court involvement and promoting the goal of rehabilitation. As state legislatures began stressing punishment and retribution over rehabilitation, many states changed their laws concerning confidentiality in the juvenile court.

As of the end of 1997, 30 states permitted or required open juvenile court hearings in cases involving juveniles charged with violent or serious offenses or repeat offenders (Torbet and Szymanski, 1998). And 22 of those states either created or modified their open hearing statutes between 1992 and 1997. For example, in 1997, Idaho added language to its statute requiring open hearings for all juveniles 14 or older charged with an offense that would be a felony if committed by an adult. States have also changed laws regarding the release of the name of a juvenile to the general public or the media. As of the end of 1997, 42 states allowed the release of a minor's name or picture under certain conditions, such as being found guilty of a serious or violent offense (Torbet and Szymanski, 1998).

Another area of legislative change involves access to juvenile court records. Although court records traditionally have been available by court order to any party who can show a legitimate interest, a number of states now allow access to a wide variety of people or agencies, including law enforcement, social service agencies, the schools, victims, and the general public. A number of states mandate notification of a juvenile's school when the child or adolescent is found guilty of particular offenses.

For example, in North Dakota, if a child or adolescent is found guilty of a sexual assault, the court must notify the child's school superintendent or principal. Juvenile records, fingerprints, and photographs are increasingly being integrated into centralized repositories. In some states, juvenile records are kept in a separate centralized system, but in others they are merged with the centralized criminal system, including sex offender registries (Torbet et al., 1996; Torbet and Szymanski, 1998).

Traditionally, juvenile records could be sealed or expunged after a specified amount of time without offending. These provisions allowed young people who had been successfully rehabilitated to clear their records so that, in effect, the proceedings would be treated as if they had never occurred (Hurst, 1985). Recent changes in state laws have lengthened the amount of time before records can be sealed or have prohibited the sealing of records for some crimes. As of the end of 1997, 25 states had made such changes (Torbet and Szymanski, 1998).

Victims' Rights Legislation

The traditional juvenile court model did not include consideration of the victims of juvenile offenders. During the past 10 years, concerns about violence by juveniles, the victims' rights movement, and interest in a restorative justice approach led to changes in state law that provided for consideration of the victims of juvenile crime. Such legislation includes measures to allow victims to be informed of hearings and dispositions, to attend hearings, to make statements before disposition or sentencing, and to be notified if an offender is released. Between 1992 and 1997, 32 states passed laws dealing with the rights of victims of juvenile crime (Torbet et al., 1996; Torbet and Szymanski, 1998).

Correctional Programming

In a number of states, changes in transfer and sentencing laws have led to changes in laws and administrative rules concerning corrections. These changes included allowing juveniles convicted as adults to be housed in separate facilities or in juvenile facilities until a certain age, creating special programs for juveniles convicted as adults, and enhancing programs in the juvenile correctional system. Between 1992 and 1995, these laws focused on the need for secure detention of violent juvenile offenders; more recently, they have focused on authorizing and funding community-based interventions and supervision of offenders (Torbet and Szymanski, 1998).

IMPACT OF LEGISLATIVE CHANGES

Most of these legislative changes are too recent for research to provide much information about their impact either on practices regarding juvenile offenders or on the young people themselves. In addition, the many inadequacies in the data available on juveniles at various stages of the system make it difficult to examine their effect on changes in practice.

The number of juveniles who are sent to criminal (adult) court nationally is not known (U.S. General Accounting Office, 1995a). In 1994, about 21,000 persons under the age of 18 were convicted of a felony in a state criminal court (Brown and Langan, 1998). And 40 percent of them were convicted of a violent offense, compared with only 18 percent of all felony convictions of those over 18. An estimated 12,000 of the 21,000 were juveniles who had been transferred through judicial waiver, prosecutorial direct file, or statutory exclusion. The remainder were in states whose maximum age for juvenile court jurisdiction is 15 or 16 (i.e., states in which 16- or 17-year-olds are defined as adults). Bishop and Frazier (2000) suggest that the above figures may be a substantial undercount. Prosecutors alone reported filing 27,000 juvenile cases in adult court in 1996 (DeFrances and Steadman, 1998), and 10,000 cases were judicially waived in 1996 (Stahl et al., 1999).

Transfer to Criminal Court

Judicial waivers have been tracked for a number of years, but data on cases transferred by prosecutorial direct file or statutory exclusion are not systematically counted. Waivers by juvenile judges have remained fairly constant over the period 1986 to 1996, representing between 1.0 and 1.6 percent of all petitioned cases (Sickmund et al., 1998). There is some evidence that a similar percentage of cases was transferred in the early years of the juvenile court. About 1 percent of cases were waived by the Milwaukee Juvenile Court in the early 20th century (Schlossman, 1977). In a study of the Chicago juvenile court, Jeter (1922) reported that the percentage of boys transferred to adult court per year was usually less than 1 percent.

Despite some stability in the overall proportion of cases transferred through judicial waiver, there is variety by type of offense. Between 1986 and 1996, cases involving person offenses (i.e., homicide, rape, robbery, aggravated assault, simple assault, other violent sex offenses, and other offenses against persons) were the most likely to be sent to criminal court by juvenile court judges; about 2 percent of person offense cases resulted in judicial waiver (Sickmund et al., 1998; Stahl et al., 1999). In the late 1980s, there was a dramatic increase in waivers for drug offense cases,

which increased from 1.2 percent in 1986 to 4.1 percent in 1991. By 1996, the percentage of drug offenses waived dropped back down to 1.2 percent. It seems unlikely that changes such as those seen in waived drug cases were due to changes in legislation. The peak occurred during the height of the war on drugs and the rise in youth violence, which was often associated with drug dealing. Waiver decisions may have been influenced by the general antidrug tenor of the period. Alternatively, the drug cases seen in juvenile court during the early 1990s may have been much more serious offenses than in the years before and after. Research, including data collection, to explain such trends remains to be done.

National data on the number of cases transferred through direct file or statutory exclusion are not available. A study by the U.S. General Accounting Office (1995a), based on data from five states, the District of Columbia, and counties in five additional states, found that the percentage of cases sent to criminal court by prosecutorial direct file ranged from less than 1 percent (in Utah) to 10 percent in Florida and 13 percent in Arkansas. At least in some states, the change to prosecutorial direct file appears to have resulted in more juveniles being processed in adult criminal court.

Recent changes in statutory exclusion laws have generally increased the population of juveniles potentially subject to transfer to the criminal courts, but no national data are currently available to determine the actual number of juveniles affected by exclusion laws, the characteristics of such juveniles, or the offenses for which they are transferred. A 1985 study of 12 jurisdictions (Gragg, 1986) reported that juveniles transferred by legislative exclusion tended to be younger and to have fewer prior arrests and placements than juveniles transferred by other means.

Research has examined the impact of various aspects of transferring juveniles to criminal courts, including studies on the types of cases most likely to be transferred, comparisons of sentences in juvenile and criminal courts, and comparisons of recidivism between transferred and non-transferred juveniles.

Types of Cases

In an analysis of judicial transfer decisions in Boston, Detroit, Newark, and Phoenix from 1981 to 1984, Fagan et al. (1987a) found that age at the time the offense was committed, age of delinquency onset, and seriousness of offense were the factors that most influenced juvenile judges' decisions to transfer a case to criminal court. The cases most likely to be waived involved older juveniles charged with serious, violent offenses, predominantly homicide. Poulos and Orchowsky (1994) examined the factors influencing judicial transfer between 1988 and 1990 in the state of

Virginia. Using multivariate logistic regression, they found that the factors most important to juvenile judges' decisions to transfer a case included current offense, prior record, and age. Most likely to be transferred were juveniles who were charged with homicide, rape, or drug sales; older juveniles; juveniles who used a gun in committing the offense; and those with prior felony person or drug adjudications or prior commitment to a residential juvenile corrections facility (learning center). Judges in metropolitan courts in Virginia were less likely to transfer cases than were those in rural counties. A small study of judicially transferred cases in New Mexico found similar results (Houghtalin and Mays, 1991). Podkopacz and Feld (1996) analyzed transfer motions filed between 1986 and 1992 in Hennepin County, Minnesota, and determined that in addition to age, present offense, and weapon use, the recommendations of probation officers and clinical evaluators significantly affected the eventual judicial waiver decision. They also found prior correctional interventions to be significant: youths with no prior program placements and those with only a few (1 to 3) were less likely to be certified to adult court than youths with four or more placements.

In contrast to the findings on judicial transfers, Bishop and Frazier (1991) found that juveniles transferred through prosecutorial waiver (direct file) in Florida from 1979 to 1981 were less often violent or chronic offenders: 55 percent of those waived were felony property offenses and only 29 percent were felony person offenses. Clarke (1996), in a study of automatic transfer (offenses legislatively excluded from the juvenile court) in Cook County, Illinois, from 1992 to 1994, found that 39 percent of the transfers were for drug or weapon offenses, 25 percent were for murder, and 22 percent were for armed robbery. The proportion of transfer cases for murder had dropped from nearly half of those transferred by judicial waiver from 1975 to 1981 to a quarter under automatic transfer. Clarke (1996) concluded that Illinois's automatic transfer provisions failed to identify and therefore protect the public against serious violent juvenile offenders. Instead, they prosecuted and stigmatized many juveniles who did not represent a threat to public safety and who could benefit from the more rehabilitative programs of the juvenile court.

A high proportion of the juveniles transferred to adult court are minorities. For example, blacks and Hispanics made up 94.7 percent of those transferred in the Cook County, Illinois, study (Clarke, 1996). Hispanics and American Indians made up 67 percent of judicially transferred cases in the New Mexico study (Houghtalin and Mays, 1991). The preponderance of minorities among transferred juveniles may be explained in part by the fact that minorities are disproportionately arrested for serious crimes. In the Fagan et al. (1987a) analysis, the effects of race on the judicial transfer decision were found to be indirect.

One reason given for transferring juveniles to criminal court is that the juvenile court cannot provide adequate sanctions for some offenses. Research on the likelihood and length of sentence in criminal versus juvenile court has mixed results. Brown and Langan (1998), in a national sample, found that a higher percentage of juveniles transferred to adult court were sentenced to incarceration than were those who remained in juvenile court: 63 percent of juveniles transferred to criminal court were sentenced to prison terms and 16 percent to jail terms. Prison sentences averaged 9.25 years. Only 21 percent were given probation. In comparison, only 31 percent of juveniles found guilty of person offenses in juvenile court were sentenced to out-of-home placement, and 53 percent were put on probation (Stahl et al., 1999).

A comparison of robbery and burglary cases in New Jersey and New York suggested that processing juveniles in the criminal court resulted in higher rates of incarceration, but not lengthier sentences than processing in the juvenile court (Fagan, 1995). Fagan also found higher rates of rearrest and reincarceration among young people processed for robbery in the criminal courts than in the juvenile courts; no such differences were found for burglary cases. A comparison of cases transferred to adult court with those adjudicated in juvenile court in St. Louis found that transferred youth did not receive greater punishment than they would have received in juvenile court (Kinder et al., 1995). The U.S. General Accounting Office (1995a) study of transferred juveniles found great variability in incarceration rates by state. In Vermont, for example, one-third of juveniles convicted of violent, property, or drug crimes in criminal court were incarcerated, while Minnesota incarcerated over 90 percent of the transferred juveniles convicted of those three types of crime. Pennsylvania incarcerated 90 percent of transferred juveniles in violent and drug offense cases, but only 10 percent in property cases.

There is some evidence that length of sentence varies in the juvenile and adult systems according to type of offense. For example, Podkopacz and Feld (1996) found in their Hennepin County, Minnesota study that for youths adjudicated of property offenses, the juvenile courts imposed longer sentences than did the criminal courts, while youths convicted of violent offenses in criminal courts received substantially longer sentences than their juvenile counterparts. Length of sentence and actual length of stay in a facility may differ, however. The length of stay in a juvenile facility appears, on average, to be much shorter than that in adult prison. Although national data on length of sentences given in juvenile court are not available, national average length of stay in long-term juvenile facili-

ties was about 8 months in 1990 (Parent et al., 1994) and was down to about 4 months in 1995 (Smith, 1998).

There appears to be variation by state in length of stay, however, with some states well above the national average. For example, in California, the average length of stay in Youth Authority institutions was 25.7 months in fiscal year 1997-1998 (California Youth Authority, 1997-1998); in Texas, the average length of stay in Texas Youth Commission facilities was 23 months for violent offenders (Criminal Justice Policy Council, 1999) and 16.5 months for all offenders in fiscal year 1999 (special data analysis done by the Criminal Justice Policy Council for this report). The California and Texas figures are similar to lengths of stay in reform schools in the late 19th and early 20th centuries.

An analysis was prepared by panel member Steven Schlossman of length of stay in Michigan's Lansing Industrial School for boys and in the New York House of Refuge. In the Michigan reform school, average length of stay was 29 months in the 1870s, dropping to 21 months in the 1890s. In the New York House of Refuge, the average length of stay in 1925 was 20 months. Because there are no national historical figures, it is impossible to tell if the national average length of stay is similar to or has actually dropped considerably over the course of the past century.

Studies have found higher recidivism rates among juveniles who had been transferred to adult court than among those who remained in the juvenile system, even when severity of offense was controlled (Podkopacz and Feld, 1996); the researchers concluded that transfer to adult court may be more likely to increase recidivism than to lessen it (Bishop et al., 1996; Fagan, 1995; Winner et al., 1997). These studies have noted that the higher recidivism rates may be attributable to a number of possible factors: the juvenile system may have correctly identified and consequently transferred youths likely to recidivate; law enforcement may be more vigilant of youths who had been through the adult court; treatment in the juvenile system may have been effective in preventing repeat offending; or adult incarceration may have encouraged further criminality. More research is needed to replicate these studies and to determine the effects on subsequent recidivism of processing in the juvenile versus the adult systems. Studies in New York (Singer and McDowall, 1988) and Idaho (Jensen and Metsger, 1994) on the general deterrent effects of legislative waiver statutes indicate that waiver laws in those two states did not have a deterrent effect on rates of juvenile violent crime.

Levitt (1998) examined the relationship between the relative punitiveness of the juvenile and adult systems and arrest rates. Using state-level

panel data from the censuses of public and private juvenile facilities and censuses of adult prisons collected by the Department of Justice for the period 1978-1993, he found that in states in which the adult system was more punitive 12 than the juvenile system, violent crime rates decreased significantly at the age of majority. In states in which the adult system was more lenient than the juvenile system, violent crime rates increased at the age of majority. This suggests that it is the relative punitiveness of the system, not whether it is the juvenile or adult system per se, that may deter crime among young people in the short term. Levitt did not find any long-term relationship between the punitiveness of the sanctions imposed on juveniles and their adult criminal behavior.

The number of juveniles affected by blended sentencing is not known on a national level. There is some information at the state level, suggesting that blended sentencing may result in relatively lengthy sentences. For example, in 1996 in Texas, the average blended sentence imposed for all offenses was 10.5 years, ranging from an average of 5 years for burglary to 31 years for capital murder (Texas law permits blended sentences up to 40 years). The percentage of commitments to the Texas Youth Commission that were blended sentences increased from about 2 percent in 1990 to nearly 8 percent in 1996. The addition of 16 offenses eligible for blended sentencing in 1996 led to an increase from 4.7 percent of commitments in 1995 to 7.6 percent in 1996. The majority of juveniles receiving blended sentences in 1996 in Texas were Hispanic (42 percent) and black (32 percent). Nearly one-third of those receiving blended sentences in 1996 were 14 years old or younger (Criminal Justice Policy Council, 1997). The impact of these laws on ultimate sanctions for juveniles sentenced under them will not be known for some years to come; this is an area that is ripe for research to begin.

The effect of these legislative changes, overall, appears to be an increase in the number of juveniles held in adult state prisons. That is not to say that all juveniles who are tried as adults and found guilty end up in adult prison. States have adopted a variety of means to deal with sanctioning these juveniles, including blended sentences that allow juveniles to begin serving time in a juvenile facility and finish their sentence in an adult facility. Some states (e.g., Texas, New York) have created special secure facilities under the auspices of the juvenile or adult corrections

department to house youth found guilty in criminal court. Nevertheless, some of the juveniles sentenced as adults are incarcerated in adult prisons, where the emphasis is on punishment and few services are available.

Youth in Adult Prisons

Between 1985 and 1997, the number of offenders under 18 admitted to state prisons more than doubled, from 3,400 in 1985 to 7,400 in 1997 (Strom, 2000). And 61 percent of those under 18 sent to state prison in 1997 had been convicted of a violent offense. Juveniles arrested for violent offenses are more likely to end up in state prison now than in 1985. In 1997, 33 of every 1,000 juveniles arrested for a violent crime were sentenced to prison, compared with 18 per 1,000 in 1985. Nearly two-fifths of the juveniles sent to state prison in 1997, however, were not there for violent offenses—22 percent had been convicted of a property offense, 11 percent of a drug offense, and 5 percent of a public order offense (Strom, 2000).

Juveniles remain a very small percentage of the total state prison population. Those under 18 make up less than 1 percent of the inmates in state prisons, a figure that has remained steady since the mid-1980s. Since 1985, juveniles have consistently made up about 2 percent of new admissions to state prisons (Strom, 2000).

Minority juveniles are disproportionately represented among juveniles sent to adult prison. In 1997, minorities made up three-quarters of juveniles admitted to adult state prisons, 13 with blacks accounting for 58 percent, Hispanics 15 percent, and Asians and American Indians 2 percent (Strom, 2000). Males accounted for 92 percent of the juveniles admitted to state prisons in 1997.

Based on current sentencing and release policies, prison officials estimate that 78 percent of those who were admitted to prison prior to their 18th birthday would be released by age 21 and 93 percent would be released by age 28 (Strom, 2000). The fact that 90 percent of juveniles admitted to prison had not completed high school, coupled with the paucity of services available to them in adult prison, does not bode well for their reentry into society.

Historical Perspective

To provide some historical perspective on juveniles in state prison, panel member Steven Schlossman analyzed a detailed sample of prison-

ers at San Quentin and Folsom prisons in the late 19th and early 20th centuries. 14 Between the 1870s and the 1930s, mid-teens were committed to San Quentin and Folsom prisons, but in very small numbers and percentages. The largest shares were in the 1870s to 1890s, when 3.7 percent of the inmates were between ages 14 and 17. With the creation of California 's juvenile court in 1903 and reform schools for juvenile offenders (see, Schlossman, 1989, for historical details), juveniles under age 18 were eliminated entirely from Folsom by the 1910s. Juveniles under age 16 were eliminated from San Quentin and those ages 16 and 17 declined to less than 1 percent of the inmate population in the 1910s and afterward. This is similar to the percentage of juveniles in adult prisons nationally today (Strom, 2000).

Racial and ethnic minority groups (black, Hispanic, Chinese, Hawaiian, American Indian, Japanese) were represented among the mid-teens committed to San Quentin and Folsom prisons, but only in two decades was there notable overrepresentation of any group: the Chinese in the 1870s, at the height of anti-Chinese period in California; and Hispanics in the 1930s, a period of severe deprivation and outmigration of Mexicans from California following large-scale immigration in the 1920s. Overall, race does not appear to have been a significant factor in influencing commitment patterns to state prison. Whites, not minorities, constituted the overwhelming majority of both mid-teen and adult offenders sent to San Quentin and Folsom prisons between the 1870s and the 1930s (see Table 5-6 ).

Just as today, a substantial percentage of juveniles in San Quentin and Folsom prisons were sentenced for property offenses (burglary and theft) rather than violent offenses against persons (murder, robbery, assault, rape). Over two-thirds of 14- and 15-year-olds in these two state prisons in the late 19th century were sentenced for property crimes. In the early 20th century—when the share of juveniles in adult prison declined considerably—a new pattern of commitment began to emerge. Their offense profile became significantly more violent; it became as common for juveniles sent to San Quentin or Folsom to have committed a person offense as a property offense. Nonetheless, half of the juveniles who were sent to these state prisons had been committed for property rather than person offenses.

The average length of sentence for juveniles committed to San Quentin and Folsom prisons in the 19th century was 3.5 years (compared to under 2 years for reform schools), much shorter than the 6.8 year national average for juveniles in state prisons in 1997 (Strom, 2000). By the 1920s to

TABLE 5-6 Race Distribution (Weighted Percentages) by Decade for Those Under 18 and Those Age 18 and Older in San Quentin and Folsom Prisons

1930s, the average sentence length for juveniles more than doubled to 8 years, more comparable to today's average.

CONCLUSIONS

The origin of the juvenile court reflects an abiding tension between safeguarding children and protecting society. This tension has been present historically and continues to be present today in the policy debates dealing with the juvenile justice system. The balance between rehabilitative goals and concerns about the best interests of the child, on one hand, and punishment, incapacitation, and protecting public safety, on the other, has shifted over time and differed significantly from jurisdiction to jurisdiction. Given the local nature of juvenile justice in the United States, there has never been a single dominant vision of how to deal with delinquent children in law or in practice. The delinquency jurisdiction of the

juvenile courts today, as in the past, continues to include both children who break criminal laws and children who commit status delinquency offenses.

Policies of the last decade have become more punitive toward delinquent juveniles, but especially toward juveniles who commit violent crimes. Punitive policies include easier waivers to adult court, excluding certain offenses from juvenile court jurisdiction, blended juvenile and adult sentences, increased authority to prosecutors to decide to file cases in adult court, and more frequent custodial placement of adjudicated delinquents. The great majority of recent changes in juvenile justice law and practice have not been evaluated. Research to date shows that juveniles transferred to adult court may be more likely to recidivate than those who remain under juvenile court jurisdiction. Furthermore, there are negative effects of detention and incarceration of juveniles on behavior and future developmental trajectories. Detained and incarcerated juveniles have higher rates of physical injury, mental health problems, and suicide attempts and have poorer educational outcomes than do their counterparts who are treated in the community. Detention and incarceration also cause severe and long-term problems with future employment, leaving ex-offenders with few economic alternatives to crime. Recent research also demonstrates that many serious as well as nonserious offenders can be treated in the community without endangering public safety.

At the same time that laws have become more punitive, innovative approaches to providing services within the juvenile justice system have been introduced. In addition, a fair amount of evaluation research on some programs has been undertaken. Contrary to those who claim that rehabilitative efforts are a waste of time because nothing works, efforts at diverting children and adolescents from detention or incarceration and providing services for them in the community show some promise. Research on treatment programs in correctional institutions suggests that cognitive-behavioral, skill-oriented, and multimodal programs have the best results in terms of recidivism reduction. Research on intensive after-care programs is less conclusive, but it seems clear that delinquent juveniles require more than just intensive surveillance and control to affect rates of future offending and help them successfully reintegrate into society. Experiments with the restorative justice model point to ways in which juvenile offenders can be held responsible for their offenses, make restitution to victims, and receive services aimed at reintegrating them into society.

Information about the number of juveniles in custody—in detention or juvenile correctional facilities—is very poor. Data on the conditions under which juveniles are incarcerated and the types of services available to them are minimal. From the available data, it appears that the rate of juveniles placed in custodial institutions has increased substantially in

the past two decades, leading to widespread overcrowding in detention and correctional facilities. The average length of stay, nationally, in public custodial institutions appears to have decreased. There is a great deal of variety by state, however, in average length of stay in long-term public facilities, with some states reporting average stays that are well above the national norm. The trend toward privatization of juvenile correctional facilities may further complicate understanding of juveniles in custody.

RECOMMENDATIONS

Being placed in secure detention disrupts a young person's life and increases the juvenile's likelihood of receiving formal processing and punitive sanctions. Secure detention and correctional facilities have become increasingly crowded, impairing their ability to provide adequate services to their heterogeneous populations. Overcrowded conditions also increase the risk of injury to both staff and juveniles. Research on alternatives to secure detention and confinement have found them to pose no greater risks to the public than secure detention or confinement. In addition, alternatives to detention or confinement tend to be less costly.

Recommendation: The federal government should assist the states through federal funding and incentives to reduce the use of secure detention and secure confinement, by developing community-based alternatives. The effectiveness of such programs both for the protection of the community and the benefit of the youth in their charge should be monitored.

Research has shown that treating most juvenile offenders within the community does not compromise public safety and may even improve it through reduced recidivism. Considering the negative effects of detention and incarceration, community-based treatment should be expanded. Evaluation components should be built into program delivery with the goal of improving services, expanding the use of programs that work, and ending support for programs that are shown to be ineffective. Replication of programs that have been found successful, such as treatment foster care or multisystemic therapy, is particularly important to advancing knowledge about what works and for whom.

Recommendation: Federal and state funding should be provided to replicate successful research-based community-based treatment programs for all types of offenders with continuing evaluations to ensure their safety and efficacy under the specific circumstances of their application.

OJJDP sponsors a biennial Census of Juveniles in Residential Placement that provides minimum information. This instrument identifies juveniles in custody on the specific date of the survey and therefore over samples juveniles in long-term confinement. Furthermore, neither this instrument nor the newly designed Juvenile Residential Facility Census (begun in October 2000), which collects basic data on size, structure, security arrangements, and ownership of facilities designed to house juveniles, as well as information about the provision of health care, education, substance abuse treatment, and mental health treatment in those facilities, yields information about children or youth housed in jails, adult institutions, or mental hospital facilities. OJJDP is planning a Survey of Youth in Residential Placement that will help to inform the public about conditions of confinement. It should be a matter of public accountability for facilities that hold juveniles in secure confinement to report on a regular basis on the conditions under which those juveniles are kept and the types of services provided.

Recommendation: The Congress should provide adequate funds to OJJDP and the Bureau of Justice Statistics in order to assure proper data collection on conditions of confinement as well as new funds to develop national data collection systems to measure the number and characteristics of children and adolescents outside the juvenile jurisdictions, those transferred to criminal court, and those held in adult prisons or jails.

Despite the large amount of descriptive literature about the juvenile justice system, little research has identified how different laws regarding juvenile crime or different practices in confinement affect juveniles in the juvenile justice system. For example, do behavioral modification programs used in secure facilities have an influence on behavior of juveniles after release? Are there long-term effects of isolation used as punishment for disobedient juveniles in confinement? Are there special benefits for particular educational programs carried out in juvenile institutions? Studies of a variety of policies and practices should be undertaken, with evaluations of psychological, educational, and physical effects on the juveniles, as well as measures of recidivism.

Recommendation: The federal government should assist the states in evaluating the effects of correctional policies and practices such as the use of behavior modification programs, physical restraints, and isolation on incarcerated juveniles, as well as determining the effectiveness of educational and psychological programming in correctional facilities.

The American Correctional Association has set minimum standards that facilities for juveniles should meet, but there is little information on the extent to which these standards are met, nor have the standards been evaluated to determine their impact on incarcerated juveniles. An evaluation of these standards in conjunction with on-going work by the Office of Juvenile Justice and Delinquency Prevention on performance-based standards in juvenile corrections would lead to the development of standards that improve outcomes for juveniles who are incarcerated.

Recommendation: Congress should provide funds for an independent evaluation of the adequacy of the American Correctional Association standards for juvenile detention and correctional facilities to ensure that the needs of juveniles in these facilities are met. The evaluation should include both short- and long-term effects on juveniles. States should be encouraged to adopt those parts of the standards that prove to be effective.

Knowledge about the operations of the juvenile justice system and the effects of a juvenile's involvement with the system is completely inadequate. Much remains to be learned at all stages of processing in the system, from the interaction of juveniles and the police, to the factors considered by various juvenile justice system personnel in decision making, to the effects of juvenile justice system involvement on juveniles' development and future life course. Many areas of juvenile justice system policy currently must rely on anecdotal evidence and best guesses.

Recommendation: Congress should provide funding for the Office of Juvenile Justice and Delinquency Prevention, in collaboration with other relevant federal agencies (such as National Institute for Mental Health, National Institute on Child Health and Human Development), to develop a research agenda with the goal of expanding knowledge needed for policy making in the following areas:

How police decisions and current police practices affect the number, type, and outcomes of juveniles in the system;

The nature of decisions made in juvenile court by various professionals, including probation officers, judges, prosecutors, and other key actors;

The extent, systemic effects, costs, and cost-effectiveness of the various possible dispositions of juvenile cases;

Long-term effects of transferring juveniles to adult court and incarcerating them in adult facilities;

The effect of using informal sanctions for juveniles committing first offenses if they are not serious crimes.

The benefits and disadvantages of secure confinement versus providing services in the community; and

Identifying appropriate treatments for female juveniles.

Even though youth crime rates have fallen since the mid-1990s, public fear and political rhetoric over the issue have heightened. The Columbine shootings and other sensational incidents add to the furor. Often overlooked are the underlying problems of child poverty, social disadvantage, and the pitfalls inherent to adolescent decisionmaking that contribute to youth crime. From a policy standpoint, adolescent offenders are caught in the crossfire between nurturance of youth and punishment of criminals, between rehabilitation and "get tough" pronouncements. In the midst of this emotional debate, the National Research Council's Panel on Juvenile Crime steps forward with an authoritative review of the best available data and analysis. Juvenile Crime, Juvenile Justice presents recommendations for addressing the many aspects of America's youth crime problem.

This timely release discusses patterns and trends in crimes by children and adolescents—trends revealed by arrest data, victim reports, and other sources; youth crime within general crime; and race and sex disparities. The book explores desistance—the probability that delinquency or criminal activities decrease with age—and evaluates different approaches to predicting future crime rates.

Why do young people turn to delinquency? Juvenile Crime, Juvenile Justice presents what we know and what we urgently need to find out about contributing factors, ranging from prenatal care, differences in temperament, and family influences to the role of peer relationships, the impact of the school policies toward delinquency, and the broader influences of the neighborhood and community. Equally important, this book examines a range of solutions:

• Prevention and intervention efforts directed to individuals, peer groups, and families, as well as day care-, school- and community-based initiatives.
• Intervention within the juvenile justice system.
• Role of the police.
• Processing and detention of youth offenders.
• Transferring youths to the adult judicial system.
• Residential placement of juveniles.

The book includes background on the American juvenile court system, useful comparisons with the juvenile justice systems of other nations, and other important information for assessing this problem.

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History of the Juvenile Justice System

A grasp of the current conflict surrounding the responsibility and direction of the juvenile justice system becomes more obtainable when one takes into consideration how the system has progressed since its inception. The juvenile justice system was created in the late 1800s to reform U.S. policies regarding youth offenders. Since that time, a number of reforms - aimed at both protecting the "due process of law" rights of youth, and creating an aversion toward jail among the young - have made the juvenile justice system more comparable to the adult system, a shift from the United State's original intent.

Progressive Era Reforms

The Progressive Era in the United States was a time of extensive social reform. The period, which formally spanned between 1900 and 1918, was preceded by nearly a century of discontent. During the Progressive Era, Americans saw the growth of the women's suffrage movement, the campaign against child labor, the fight for the eight-hour workday, and the uses of journalism and cartooning to expose "big business" corruption.

Prior to the Progressive Era, child offenders over the age of seven were imprisoned with adults. Such had been the model historically. But the actions of political and social reformers, as well as the research of psychologists in the 18th and 19th centuries, began a shift in society's views on juvenile delinquents. Early reformers who were interested in rehabilitating rather than punishing children built the New York House of Refuge in 1824. The reformatory housed juveniles who earlier would have been placed in adult jails. Beginning in 1899, individual states took note of the problem of youth incarceration and began establishing similar youth reform homes.

Such early changes to the justice system were made under a newfound conviction that society had a responsibility to recover the lives of its young offenders before they became absorbed in the criminal activity they were taking part in. The juvenile justice system exercised its authority within a "parens patriae" (state as parent or guardian) role. The state assumed the responsibility of parenting the children until they began to exhibit positive changes, or became adults. Youth were no longer tried as adult offenders. Their cases were heard in a somewhat informal court designed for juveniles, often without the assistance of attorneys. Extenuating evidence, outside of the legal facts surrounding the crime or delinquent behavior, was taken into consideration by the judge. Early reform houses were, in many ways, similar to orphanages. Indeed, many of the youth housed in the reformatories were orphans and homeless children.

"In re Gault" - 1967

By the 1960s juvenile courts had jurisdiction over nearly all cases involving persons under the age of 18, and transfers into the adult criminal system were made only through a waiver of the juvenile court's authority. Juvenile courts aimed to make their 'civil proceedings' unlike adult 'criminal trials.' The civil proceedings, however, did not afford youths who were indeed facing a potential loss of liberty the due process of law rights explicated in the 5th and 14th Amendments. The right to trial by jury and the freedom against self-incrimination were guaranteed to citizens in 5th Article of the Bill of Rights (ratified 1791). This Article, the 5th Amendment to the Constitution, states that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall [a person] be compelled in any criminal case to be a witness against himself." The 14th Amendment required that all citizens of the United States receive equal protection under the law. The Amendment states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The 14th Amendment was ratified in 1868.

A 1967 decision by the Supreme Court affirmed the necessity of requiring juvenile courts to respect the due process of law rights of juveniles during their proceedings. The ruling was the result of an evaluation of Arizona's decision to confine Gerald Francis Gault. Gault (age 15) had been placed in detention for making an obscene call to a neighbor while under probation. The Arizona juvenile court had decided to place him in the State Industrial School until he became an adult (age 21) or was "discharged by due process of law." The Supreme Court decision, delivered by Justice Abe Fortas, emphasized that youth had a right to receive fair treatment under the law and pointed out the following rights of minors:

• The right to receive notice of charges
• The right to obtain legal counsel
• The right to "confrontation and cross-examination"
• The "privilege against self-incrimination"
• The right to receive a "transcript of the proceedings," and
• The right to "appellate review"

The dissenting voice, Justice Potter Stewart, expressed concern that the court's decision would "convert a juvenile proceeding into a criminal prosecution." He held to the historical intent of the juvenile justice system, which was not to prosecute and punish young offenders, but to "correct a condition," and meet society's "responsibilities to the child."

The Juvenile Delinquency Prevention and Control Act - 1968

In 1968 Congress passed the Juvenile Delinquency Prevention and Control Act. The act was designed to encourage states to develop plans and programs that would work on a community level to discourage juvenile delinquency. The programs, once drafted and approved, would receive federal funding. The Juvenile Delinquency Prevention and Control Act was a precursor to the extensive Juvenile Justice and Delinquency Prevention Act that replaced it in 1974.

The Juvenile Justice and Delinquency Prevention Act - 1974

By 1974 the United States had developed a strong momentum toward preventing juvenile delinquency, deinstitutionalizing youth already in the system, and keeping juvenile offenders separate from adults offenders. The Juvenile Justice and Delinquency Prevention Act of 1974 created the following entities:

• The Office of Juvenile Justice and Delinquency Prevention (OJJDP)
• The Runaway Youth Program, and
• The National Institute for Juvenile Justice and Delinquency Prevention (NIJJDP)

In order to receive funds made available by the act, states were required to remove youth from "secure detention and correctional facilities," and separate juvenile delinquents from convicted adults. Part of the rationale behind the separation of juvenile and adult offenders was evidence that delinquent youth learned worse criminal behavior from older inmates. Such logic was voiced in the Progressive Era by the writer Morrison Swift, who commented on the practice of jailing young offenders with adults, "young and impressionable offenders were being carried off to Rutland with more hardened men, there to receive an education in lawlessness from their experienced associates." ("Humanizing the Prisons," August 1911, The Atlantic).

"Get Tough on Crime" Legislation

A steep rise in juvenile crime occurred between the late 1980s and mid-1990s. The increase in crime hit a peak in 1994 and then began to gradually decline. In response to a fear that juvenile crime would continue to rise at the rate seen between (roughly) 1987 and 1994, legislatures enacted measures designed to "get tough on crime." The 1974 Juvenile Justice and Delinquency Prevention Act was amended to include provisions that would allow states to try juveniles as adults for some violent crimes and weapons violations. Minimum detention standards were also put into place in some states. The anti-crime sentiment of the period caused changes to be implemented to the juvenile justice system that made it increasingly similar to the adult (criminal) justice system. The shift Justice Stewart had predicted in 1967, with the implementation of formal trials for youth, reflected an increasingly common view that juvenile offenders were not youth begging rehabilitation, but young criminals. Rehabilitation became a lesser priority to public safety in the aggressive campaign against crime of the 1990s.

In the late 1990s Americans faced growing concern over highly publicized and violent juvenile crime. A series of school shootings and other horrendous offenses caused the public to fear a new breed of "juvenile superpredators," defined by the OJJDP as "juveniles for whom violence was a way of life - new delinquents unlike youth of past generations." The OJJDP's February 2000 "Juvenile Justice Bulletin," acknowledged that the threat of juvenile violence and delinquency was grossly exaggerated in the 1990s; however, the fear experienced at the time resulted in significant changes to the United State's approach to juvenile crime.

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History of Juvenile Justice

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David Weisburd

Faculty of Law, The Hebrew University, Mt. Scopus, Jerusalem, Israel

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American juvenile justice system: history in the making

The original theory behind separating juvenile offenders from adult offenders was to provide care and direction for youngsters instead of isolation and punishment. This idea took hold in the 19th century and became mainstream by the early 20th century. In the 1950s and 1960s, public concern grew because of a perceived lack of effectiveness and lack of rights. The Supreme Court made a series of rulings solidifying juvenile rights including the right to receive notice of charges, the right to have an attorney and the right to have charges proven beyond a reasonable doubt. In the 1980s, the public view was that the juvenile court system was too lenient and that juvenile crimes were on the rise. In the 1990s, many states passed punitive laws, including mandatory sentencing and blanket transfers to adult courts for certain crimes. As a result, the pendulum is now swinging back toward the middle from rehabilitation toward punishment.

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Mental Health and the Juvenile Justice System: Where Has History Taken Us?

• Divya Kiran Chhabra , M.D.

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Juvenile justice is a system designed to navigate youth crime via police, court, and correctional involvement, but history has shaped and given this system the responsibility to also function as a vast mental health care system. Understanding this system’s past helps to highlight changes that must be made for its future.

Historical Context

From ancient Greek civilization to English Common Law, the precedents to the American system, youth offenders were punished as adults, and although this has largely changed, a gray area clouds the way children are viewed in criminal justice today ( 1 ). In the early 1800s, with the introduction of child psychodynamics in America, the field recognized that children do not have the same moral capacity as adults ( 2 ). Childhood consists of unique developmental stages, including adolescence ( 3 ). As child poverty rates increased during the 1800s, reform movements decriminalized delinquency by removing youths from the adult justice system to “treat” youthful offenders rather than punish them ( 4 ). Children were placed with families in rural areas, houses of refuge, reform schools, and group cottages ( 5 ).

Juvenile Justice in the United States

In the 1960s, due to rising crime rates, the juvenile justice system shifted from a community-based system to a punitive-based system, straying from the original vision ( 6 ). Over the next 30 years, harsher punishments were given in an endeavor to prevent homicides, as part of the “get tough” movement and the “war on drugs” during President Ronald Reagan’s administration ( 7 ). Simultaneously, public mental health services for children decreased, and this rerouted youths into the criminal justice system (including the adult system), which is now primarily comprised of correctional facilities ( 8 ).

Until the 1990s, reliable studies on mental health statistics in the juvenile justice system were scarce ( 9 , 10 ). Federally mandated research and investigations on mental health services in the system were conducted for the first time in 1998, revealing inadequate mental health care and screenings in several states ( 11 ). It was also during this time that recognition of the mental health needs for all youths grew, and leaders realized that previous estimates of the prevalence of “emotional disturbance” in this population were low ( 12 , 13 ). Lastly, until this point, a stark disparity existed in the legal mental health rights between youths and adults in the criminal system ( 14 ). Although the need for large-scale change in the punitive system was acknowledged during this time, the problems were deeply rooted and still affect our system today.

Clearly, psychiatry and the juvenile criminal justice system are historically intertwined. According to the Northwestern Juvenile Project, a longitudinal study that began in 1998 in Cook County, Illinois, 66% of males and 74% of females arrested and detained in the area had a mental disorder, with one in 10 having thoughts of suicide or a prior suicide attempt. Ninety-three percent of youths in this study had experienced physical, sexual, or verbal trauma, and 47% of females and 51% of males suffered from a substance use disorder ( 15 ). Similar results have been replicated in other studies, including a national study administered by the Office of Juvenile Justice and Delinquency Prevention that surveyed more than 7,000 youths in over 200 centers nationally ( 16 ). These findings are startling considering that 1.3–2.2 million youths were arrested annually between 2012 and 2016 ( 17 ). According to the Office of Juvenile Justice and Delinquency Prevention, although the juvenile crime rate has decreased nationally, the rate of children and adolescents processed in the system yearly has significantly increased since 1985, and an increased proportion of cases result in detention ( 18 ). Research has shown that long-term confinement in the justice system alone is detrimental to mental health ( 19 ). This is distressing, since those entering the system have higher rates of mental disorders to begin with ( 15 ).

Mental health screening, assessment, and treatment became mandatory in the early 2000s ( 20 ). However, a gap persisted between policy and implementation, and these policies alone are not an adequate resolution for an incredibly entrenched and multifactorial disparity. In 2006, the Federal Advisory Committee on Juvenile Justice reported that lack of appropriate staffing, lack of administrative capacity, insufficient research, heavy caseloads for social workers, lack of wraparound services, and lack of vigilant monitoring of adherence to mental health guidelines and policies are all barriers to successful implementation ( 21 ).

Conclusions

More recently, the system has been working toward a more rehabilitative and collaborative, versus punitive, approach, and, slowly, legal changes have been made ( 22 ). However, more needs to be done. Screening and assessments must be conducted earlier in the process and become completely standardized and research-based ( 20 ). Research has shown that diversion programs and evidence-based treatment services, such as wraparound services and various types of therapy, are more efficacious when they are centered in the community rather than use of these treatments within the system ( 8 , 20 ). Moving forward, the juvenile justice system should play a larger role in connecting children and adolescents with child protection, education, and outside child welfare agencies.

Key Points/Clinical Pearls

Historically, youth offenders worldwide were punished as adults, and it took a much deeper understanding of development before reform occurred.

Despite our knowledge of development, politics and history in America have shaped the juvenile justice system to, in many ways, still treat children as adults and to function as a vast mental health care system.

Research that has been conducted in the juvenile justice system reveals that children involved with this system have higher rates of suicidality, trauma, and other mental disorders, and the long-term confinement these children undergo is even more detrimental.

Mental health screening, assessment, and treatment became mandatory in the system in the early 2000s, but a gap still exists between policies and intervention.

1. Nybell LM, Shook JJ : Childhood, Youth, and Social Work in Transformation: Implications for Policy and Practice . Edited by Finn JL . New York, Columbia University Press, 2009 , p51 Google Scholar

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3. Lathrop J : Introduction , in The Delinquent Child and the Home: Study of Delinquent Wards of the Juvenile Court of Chicago . Edited by Breckinridge S,Abbott E . New York, Russell Sage Foundation, 1912 , pp 11–20 Google Scholar

4. West E : Growing Up in 20th Century America: A History and Reference Guide . Westport, Conn, Greenwood Press, 1996 , pp 15, 31, 42,54 Google Scholar

5. Finley LL : Juvenile Justice . Westport, Conn, Greenwood Press, 2007 Google Scholar

6. Alexander M : The New Jim Crow: Mass Incarceration in the Age of Colorblindness . New York, New Press, 2012 Google Scholar

7. Sickmund M, Snyder HN : Juvenile Offenders and Victims: 1999 National Report . Pittsburgh, Office of Juvenile Justice and Delinquency Prevention, 1999 . https://www.ncjrs.gov/html/ojjdp/nationalreport99/toc.html (Accessed November 2016) Google Scholar

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9. Otto R, Greenstein J, Johnson M, et al. : Prevalence of mental disorders among youth in the juvenile justice system , in Responding to the Mental Health Needs of Youth in the Juvenile Justice System . Cocozza JK , ed. Seattle, Wash, National Coalition for the Mentally Ill in the Criminal Justice System, 1992 , pp 90–95 Google Scholar

10. Cocozza JJ, Skowyra KR : Youth with mental health disorders: issues and emerging responses . Juvenile Justice 2000 ; 7(1):2–13 Google Scholar

11. Center for Mental Health Services : Inventory of Mental Health Services in Juvenile Justice Facilities, Halfway Houses and Group Homes (Survey) . Rockville, Md, US Department of Health and Human Services, 1998 Google Scholar

12. Friedman RM, Katz-Leavy JW, Manderscheid RW, et al. : Prevalence of serious emotional disturbances in children and adolescents . Mental Health 1996 ; 71–89 Google Scholar

13. Hartman L : Children are left out . Psychiatr Serv 1997 ; 48(7):953–954 Google Scholar

14. Woolard JL, Gross SL, Mulvey EP, et al. : Legal issues affecting mentally disordered youth in the juvenile justice system , in Responding to the Mental Health Needs of Youth in the Juvenile Justice System . Cocozza JK , ed. Seattle, Wash, National Coalition for the Mentally Ill in the Criminal Justice System, 1992 , pp 91–95 Google Scholar

15. Teplin LA, Abram KM, Washburn JJ, et al. : The Northwestern Juvenile Project: overview . OJJDP Juvenile Just Bull 2013 ; 13:1–16 Google Scholar

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• Relationships Matter: The Role Transition Specialists Play in Youth’s Reentry From the Juvenile Justice System 28 August 2020 | Career Development and Transition for Exceptional Individuals, Vol. 44, No. 1
• Nathaniel P. Morris , M.D.

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Youth Justice in Australia

Chris Cunneen is professor of justice and social inclusion at the Cairns Institute, James Cook University, Australia.

• Published: 02 September 2014
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This essay provides an overview and analysis of juvenile justice in Australia. It describes the historical background to the establishment of a separate juvenile justice system and the contemporary legislative framework for juvenile justice. The essay examines the most prevalent offenses for which young people come into contact with juvenile justice agencies. the role of the police, the administration of diversionary schemes, and the role of the children’s court are discussed. Particular attention is paid to the sentencing of young people and the various sanctions available to the court, including community-based orders and detention. The longer-term trends in sentencing, particularly the use of detention, are also analyzed. The essay concludes with a consideration of key issues in juvenile justice, including policing and public order, the use of pretrial detention (remand), racialization and the overrepresentation of Indigenous youth, and the importance of human rights

1 Introduction

This essay provides an outline of youth justice in Australia. At the outset it is important to recognize that Australia has a federal political system comprising the federal government and eight state and territory governments. The eight states and territories exercise primary constitutional responsibility for police, criminal law, criminal courts, prisons, juvenile justice, and child welfare. While there are also federal criminal laws (and federal police), these laws relate to criminal behavior that is much less likely to involve young people as offenders (e.g., terrorism offenses, drug importation, social security fraud, child sex tourism). There are no federal prisons in Australia. Adults or juveniles convicted of a federal offense who are sentenced to youth detention or adult imprisonment serve their sentence in a state facility.

The population of Australia is 23 million. The state with the largest population is New South Wales (NSW) with a population of 7.3 million. In comparison to other Western countries, a relatively large proportion of the population are recent immigrants, with around one-quarter of the population born outside of Australia ( ABS, 2010 , 8). The states with the greatest proportion of foreign-born residents are Western Australia, New South Wales, and Victoria ( ABS, 2010 , 52). Indigenous peoples (Aboriginal and Torres Strait Islanders) comprise 3 percent of the total population. However, the demographic composition of the population is not uniform across the country. For example, the greatest proportion of Indigenous young people compared to other youth is in the Northern Territory (45.2 percent of the total youth population); the lowest proportion is in Victoria (1.3 percent; AIHW, 2012 ).

The federal system of government with primary powers for juvenile justice vested at a state and territory level and the varying sociodemographic profile across the country have significant effects on the way juvenile justice operates. These differences need to be kept in mind. While there are common elements to juvenile justice across the nation, and also some shared problems, there are also significant variations between jurisdictions in, for example, the use of diversion and community-based sanctions and the rates of detention. It is beyond the scope of this essay to consider in detail the reasons behind differing state and territory approaches to juvenile justice. However, it is important to note that local political and cultural factors are important. For example, Victoria historically has had a more liberal approach to sentencing than its neighboring state of New South Wales, while those jurisdictions with a large proportion of Indigenous people also have comparatively high incarceration rates ( Cunneen et al., 2013 ).

Section 2 of this essay describes the historical background to the establishment of a separate juvenile justice system in Australia. The contemporary legislative framework for juvenile justice is discussed in Section 3 . In Section 4 , I examine the most prevalent offenses for which young people come into contact with juvenile justice agencies. The role of the police, particularly in the administration of diversionary schemes for young people, is discussed in Section 5 . In Section 6 , I describe the role of the children’s court and in particular the sentencing of young people. I outline the various sanctions available to the court, including community-based orders and detention. Most young people are sentenced to various community-based sanctions rather than detention. In Section 7 , I describe the utilization of various sentencing options, including some of the longer-term trends in the use of detention. The final section of this essay, Section 8 , considers key issues in juvenile justice, including policing and public order, the use of pretrial detention (remand), racialization and the overrepresentation of Indigenous youth, and the importance of human rights.

Because there are eight separate juvenile justice systems in Australia, I have mostly drawn on examples from the largest state, New South Wales, when discussing law, policy, and practice, except where other factors may be relevant.

2 Historical Background

The states of Australia developed specific processes for dealing with young people during the nineteenth century. The developments were influenced by two fundamental shifts: a change in the role of the magistrate’s court in relation to hearing offenses committed by juveniles and the establishment of reformatories and industrial schools for the incarceration of juveniles ( Cunneen and White, 2011 , 7). Legislation introduced in the mid-nineteenth century allowed magistrates to apply specific procedures and different penalties for young people convicted of certain, mostly property offenses compared to adults prosecuted and convicted for the same offenses. The power to sentence young people to incarceration irrespective of the seriousness of the offense reflected a shift in penal thinking, from a focus on the offense to the offender. Extended periods of incarceration also reflected a shift from a focus on proportionality in sentencing to what were perceived as the best interests of the child. The new institutions were justified by the need to separate juveniles from adults and to create a special form of discipline and training suitable for the rehabilitation of young people ( Cunneen and White, 2011 , 7–12).

The establishment of specific children’s courts was a progression from these earlier changes. Starting with South Australia in 1895, children’s courts were established across the country over the next two decades. The major reason given for their establishment was to ensure that young people were tried separately from adults and were not subject to the harmful effects of contamination and stigma. The Australian legislation was based on child-saving rhetoric similar to that used in the United States ( Platt, 1977 ). The courts were to be parental and informal, with correction administered in a “fatherly manner.” Magistrates were to be specially selected, trained, and qualified to deal with young people; probation officers were to play a special role in supervising young people and preparing background reports.

The legislation establishing children’s courts in Australia gave exclusive jurisdiction to the courts over criminal matters (juvenile offending) and welfare matters (neglected children and young people). The legislation also stipulated that the children’s court had to sit separately to the other courts and that special magistrates had to be appointed. In practice, however, most magistrates were simply designated as children’s magistrates, and only in the major cities did anything like special courts exist. The reality of life for young people in institutions was also far from the ideal. Various official inquiries during the later part of the nineteenth and early twentieth century painted a picture of reformatories as brutal jails ( Cunneen and White, 2011 , 11).

3 Current Legislative Framework

There is no single law in Australia that establishes a separate juvenile justice system. Each state and territory has its own specific legislation. However, throughout Australia the minimum age of criminal responsibility is set at 10 years. The common law principle of doli incapax applies to 10- to 14-year-olds throughout Australia. 1 Young people are subject to adult criminal proceedings at the age of 18 in all states and territories, except Queensland, where the age is 17.

Although each Australian jurisdiction is different, generally speaking juvenile justice legislation covers the principles applicable to dealing with young people, the way police may proceed against a young person through the use of arrest or court summons, rules and principles governing police and court diversionary schemes, any special considerations for young people in regard to bail or pretrial custody, the exclusive jurisdiction of the children’s court, which criminal matters the children’s court can hear and which matters must go before a higher court, appeals against a decision by the children’s court, the sentencing options available to the court, any special requirements relating to restitution and compensation, and the establishment of juvenile detention centers and their operation.

These matters may be found in a single act of parliament or several acts, depending on the particular state. The principal legislation for each Australian state and territory is the Australian Capital Territory Children and Young People Act 2008; the New South Wales Children (Criminal Proceedings) Act 1987 and Young Offenders Act 1997; the Northern Territory Youth Justice Act 2005; the Queensland Juvenile Justice Act 1992 and Children’s Court Act 1992; the South Australian Young Offenders Act 1993 and Youth Court Act 1993; the Tasmanian Youth Justice Act 1997; the Victorian Children, Youth and Families Act 2005; and the Western Australian Children’s Court of Western Australia Act 1988 and Young Offenders Act 1994. In most Australian jurisdictions, there is separate legislation to cover children in need of care and protection (i.e., child welfare). However, the Victorian Children, Youth and Families Act 2005 deals with both children in need of protection as well as children in conflict with the law in a single act.

In addition to specific juvenile justice legislation, young people are subject to the general criminal laws in force in various states. Criminal laws make no distinction between adults and juveniles, although in practice some criminal laws have disproportionate impacts on young people, a point I return to in Section 9 . Legislation covering criminal justice procedure and police powers also affect young people. Legislation of this nature covers, for example, the issuing of search warrants and summonses, the collection of DNA and other bodily samples, strip searches, and finger-printing. In some cases the legislation provides special protections for young people of varying ages. For example, under the Crimes (Forensic Procedures) Act 2000 (NSW), a forensic procedure cannot be carried out on a child under the age of 10. For children and young people ages 10 to 18, a court order is required to carry out such a procedure. Strip searches cannot be carried out on a child under the age of 10; the searches must have a parent or guardian present when “reasonably practicable in the circumstances” if conducted on a young person age 10 to 18 (Law Enforcement [Police Powers and Responsibilities] Act 2002 [NSW] Sec. 33). The police do not have the power to take fingerprints, palm-prints, or photographs of young people or children under the age of 14 unless there is a court order (Law Enforcement [Police Powers and Responsibilities] Act 2002 [NSW] Sec. 133).

Young people are also subject to legislation governing the right to bail and to general sentencing laws. Bail legislation sets out criteria for bail and any presumptions for or against bail. In some states the requirements of the general bail legislation are modified in their application to young people, for instance specifying special conditions relating to the release of young people. Sentencing legislation varies between states and territories. However, in general the legislation sets out requirements in relation to fixed terms, minimum terms, and additional terms of imprisonment, as well as the relationship between parole periods and imprisonment. In New South Wales, for example, sentencing legislation establishes that all sentences of detention or imprisonment for the period of six months or less must be fixed terms without any possibility of parole (Crimes [Sentencing Procedure] Act 1999 [NSW] Sec. 46). This requirement affects both adults and juveniles.

Juvenile justice services in each state and territory have responsibility for the preparation of court reports, the supervision of young people placed on a probation order or other supervisory order by the court, and the provision of specialist counselling services to young offenders. Juvenile justice services also have responsibility for establishing and administering detention centers. During most of the twentieth century, juvenile justice services were provided by state departments responsible for community and family welfare. The location of juvenile justice services within welfare departments is important because it is likely that young offenders will have multiple requirements in relation to social services, housing services, and welfare agencies more generally ( White, 2004 ). However, over the past two decades there has been a trend to relocate these services within departments responsible for justice and adult corrections. This change represents a move to seeing young people as more akin to adult offenders and a shift from focusing on the special needs of young people to emphasizing their responsibility for offending behavior.

4 Most Prevalent Offenses

There is some variation among Australian states, but typically burglary, theft, and assault are the most common offenses heard in children’s courts. For example, over 80 percent of criminal matters determined in the New South Wales Children’s Court comprised various forms of assault (22.2 percent), property theft (17.4 percent), and burglary (13.4 percent), followed by public order offenses (10.9 percent), robbery (8.9 percent)m and justice offenses (breaching bail or other court orders, 8.2 percent; Cunneen and White, 2011 , 60).

Of course not all offenses committed by young people will be determined in a children’s court. Police may choose to send young people to non-court diversionary options (see Section 5 ). Therefore data on police apprehensions 2 of young people also provide a window on the type of offenses for which young people come into contact with the juvenile justice system. Police data from South Australia shows that more than 50 percent of young people are apprehended by police for either theft-related offenses or public order offenses ( Cunneen and White, 2011 , 59).

As in many countries, there is a great deal of public discussion in Australia over the question of rising juvenile crime rates. Over the longer period it appears that the increase in juvenile arrests experienced during the period of the 1960s to the 1980s leveled off during the 1990s. There is evidence to suggest that the leveling off in juvenile offending in the mid- to late 1990s became an actual decline in recorded juvenile offending levels during the early 2000s. National rates of offending by 10- to 14-year-olds have been declining since 1995–1996, and rates of offending by 15- to 19-year-olds have been declining since 2000 ( Richards, 2009 , 29). However, the picture is not uniform across all offenses. We know that many types of crime declined during the early 2000s, with lower incidents of car theft, homicide, robbery, and burglary. Some offenses also increased during this period, most notably assaults (Australian Institute of Criminology, 2004, 8). More recently there have been further declines in juvenile offending in some crime categories. For example, the recorded number of juvenile offenders proceeded against by the New South Wales police for violent offenses fell by 20.7 percent over the five years ending December 2012. Similarly, over the same time period, the number of juvenile offenders proceeded against for property offenses fell by 36.9 percent ( NSW Bureau of Crime Statistics and Research, 2013 , 1).

The possible reasons for the decline in the frequency of particular crimes are complex. Some possible contributors to the downward trend in property crime include a fall in heroin consumption and greater use of drug treatment programs, a rise in average weekly earnings, and a fall in long-term unemployment among young men ( Moffatt, Weatherburn, and Donnelly, 2005 ). Motor vehicle theft has consistently declined since 2000, largely because of the introduction of engine immobilizers as standard equipment on new cars.

At this point it is also worth noting the Australian research on the reoffending trajectories of young people. Research based on the reappearance of young people before either a children’s court or an adult criminal court found that 60 percent of young people who had appeared in a children’s court later appeared at least once in either an adult or a juvenile court within the next eight years ( Chen et al., 2005 ).

5 The Police and Diversion

Police services play a major role in juvenile justice through the apprehension of young people who have allegedly committed offenses, and this constitutes a significant component of police work ( Cunneen and White, 2011 , 56–57). Police also have a significant role in juvenile precourt diversion schemes. Police have a common-law discretionary power to issue a warning to a suspected offender. In most states there is no formal recording of warnings, so the extent of their use in relation to young people is unknown. However, the two major formal precourt juvenile diversionary schemes in Australia are police cautions and youth justice conferencing.

5.1 Police Cautions

Throughout Australia, police have the power to issue a formal caution against a young person as an alternative to charging him or her with a criminal offense. If a caution is issued, the young person is not prosecuted and the matter does not proceed to court. Police cautions involve an admission of the offense by the juvenile and a warning from the police officer, often in the presence of the young person’s family. This normally takes place at the police station and is officially recorded. No further action is taken, although a caution having been issued is likely to affect later police interactions with the young person. Australian research suggests that young people cautioned for their first offense are less likely to reoffend than those who participate in youth justice conferences and are less likely to reoffend than those who are brought before the courts without the benefit of a police caution ( Dennison, Stewart, and Hurren, 2006 ; Vignaendra and Fitzgerald, 2006 ).

In all states and territories, except Victoria, the rules guiding police cautioning programs are found in juvenile justice legislation where the purpose of the caution and the procedures involved are stipulated. For example, the Young Offenders Act 1997 (NSW) excludes certain offenses from consideration for diversion, including, among others, any offense that results in the death of a person, domestic violence offenses, sex offenses, and certain drug offenses. The legislation requires that the young person must admit the offense and consent to the caution being given. In guiding police discretion to issue a caution, section 20, subsection (3) of the Young Offenders Act 1997 (NSW) requires that the officer consider the following:

the seriousness of the offense;

the degree of violence involved in the offense;

the harm caused to any victim;

the number and nature of any offenses committed by the child and the number of times the child has been dealt with under this Act; and

any other matter the official thinks appropriate in the circumstances.

Victoria is the only state in Australia that does not provide for police cautioning within its juvenile justice legislation, although it has had a formal system of police cautioning as part of police procedures since 1959 ( Polk et al., 2003 , 15, 18). In all states there are additional guidelines for issuing police cautions and referral to education and treatment to individuals who have been found in possession of small amounts of cannabis. Drug diversion schemes are general in their application to both adults and children.

The use of the police cautions appears to vary considerably between different states and territories, although not all jurisdictions provide information on the use of cautions by police. In 2007 in New South Wales, 17 percent of apprehended young people were dealt with by a police caution, compared to 30 percent in Victoria and 41 percent in Queensland ( Richards, 2009 , 54–55). Although current national data on the use of police cautions is unavailable, it would appear that in recent years there has been a decline in their use, at least in some jurisdictions. For example, in New South Wales the number of cautions issued by police has been declining annually by 13.3 percent for the three years since 2010 ( Goh and Moffat, 2013 , 35). In Queensland, the use of police cautions has also been declining in recent years ( Children’s Court of Queensland, 2012 , 18).

5.2 Youth Justice Conferencing

Beginning in the late 1980s and early 1990s, ideas around restorative justice and the use of youth justice conferencing models gained a substantial foothold in the development of alternative diversionary approaches for juveniles. Youth justice conferencing is a diversion option for young people that provides an alternative to having their matter determined in court. It is also a more serious type of intervention than a police caution but less serious than a court determination. Conferencing is based broadly on restorative justice principles that involve a meeting between victims, offenders, and other interested parties.

Conferencing in Australia developed in a piecemeal fashion across the states and territories, each with its own particular procedure. Most jurisdictions have introduced legislation to formalize conferencing as a major diversionary option (see Polk et al., 2003 , viii; Richards, 2010 , 3–4). For example, the Young Offenders Act 1997 (NSW) Part 5, section 34 sets out the principles and purpose of conferencing as follows:

The principle that measures for dealing with children who are alleged to have committed offenses are to be designed so as:

to promote acceptance by the child concerned of responsibility for his or her own behaviour, and

to strengthen the family or family group of the child concerned, and

to provide the child concerned with developmental and support services that will enable the child to overcome the offending behaviour and become a fully autonomous individual, and

to enhance the rights and place of victims in the juvenile justice process, and

to be culturally appropriate, wherever possible, and

to have due regard to the interests of any victim.

The principle that sanctions imposed on children who commit offenses are:

to be of a kind most likely to promote the development of such children within their family or family group, and

to take the least restrictive form that is appropriate in the circumstances, and

to assist children to accept responsibility for offenses.

The principle that any measures for dealing with, or sanctions imposed on, children who are alleged to have committed offenses take into account:

the age and level of development of any such children, and

the needs of any children who are disadvantaged or who are disconnected from their families, and

the needs of any children with disabilities, especially those with communication and cognitive difficulties, and

the gender, race and sexuality of any such children.

Similar restrictions apply to the use of conferencing in New South Wales as those noted previously in relation to the issuing of police cautions, including the exclusion of certain offenses, the requirement to admit the offense, and the requirement to consent to the caution.

Polk et al. (2003 , 47–48) refer to three models of conferencing currently operating in Australia: (i) the conference process is developed and run by police; (ii) the police refer young people to a conference but the process is run independently of police; (iii) conferencing is only available by way of court referral—so it is a postcourt option. The third model exists only in Victoria. Therefore, in most of Australia, youth justice conferencing relies on the discretionary decision by police officers to refer a young person to a conference rather than instituting formal court proceedings.

Despite the introduction of youth justice conferencing as major reform with the aim of diverting young people from children’s courts, its use is highly uneven across the various jurisdictions. For example, in New South Wales only 3 percent and in Queensland only 6 percent of all young people apprehended by police were referred to a conference. By way of contrast, in South Australia 17 percent and in the Northern Territory 25 percent of all young people apprehended by police were referred to a conference ( Richards, 2010 , 5). Although current national data on the use of youth justice conferencing is unavailable, it would appear that in recent years there has been a decline in the use of conferences. In New South Wales the number of conferences has declined annually by 17.1 percent for the three years since 2010 ( Goh and Moffat, 2013 , 35).

5.3 Infringement Notices and Diversion

In recent years it has become more difficult to provide a simple comparison between the use of precourt diversion schemes (cautioning and conferencing) as an alternative to court proceedings because of the rise in the police use of infringement notices (on-the-spot fines) for minor criminal, particularly public order offenses. The types of minor offenses covered by infringement notices vary from state to state but can include offensive language, failing to move on as directed by police, some alcohol-related offenses, and various public transit offenses. An infringement notice issued to a young person is no different from that issued to adults: the monetary fine is the same irrespective of whether the person is a juvenile or adult. The minimum age at which a young person can be issued with an infringement notice varies across jurisdictions, for example, from 10 years old in New South Wales to 16 years old in South Australia.

There are a number of concerns that have been raised in relation to the use of infringement notices. The issuing of an on-the-spot fine precludes the consideration of the use of a juvenile diversionary option such as a warning, police caution, or referral to a youth justice conference. There is also concern that, for some offenses, such as indecent or offensive language, the evidentiary threshold required in a court hearing is considerably higher than the subjective decision of a police officer issuing an infringement notice. Fines can also act to entrench disadvantage for young people, given that fines are fixed without consideration of age or employment. Finally, it has been noted that the issuing of fines does little in the way of either deterrence or education, particularly given that much minor juvenile offending is spontaneous and sporadic ( New South Wales Law Reform Commission, 2012 , 327).

6 The Children’s Court and Sentencing

6.1 the jurisdiction of the children’s court.

Children’s courts have major jurisdiction over offenses committed by young people. 3 While the specific criminal law and procedure varies between states and territories in Australia, these include all summary offenses (the less serious offenses that are heard before a magistrate), although traffic offenses are usually excluded from the children’s court if the child is of an age he or she can legally obtain a driver’s license. The hearing in a children’s court is summary: that is, before a magistrate and without a jury.

For many indictable offenses (felonies or more serious offenses, such as car theft and burglary, which can be heard before a judge and jury in a higher court), the young person can elect to have the matter dealt with by the children’s court or in a higher court by a judge and jury. The court itself may decline jurisdiction and refer the case to a higher court, or the prosecution make seek to have matter heard in a higher court. In some jurisdictions, if the young person has been charged jointly with an adult for an offense, the children’s court can order that the matter be heard in an adult court.

Finally, for serious indictable offenses (such as homicide) where the offense might result in a sentence of life imprisonment or for an extended period of imprisonment and there is a prima facie case to answer, the young person will be committed to trial in the relevant state or territory Supreme Court. Thus while the children’s court generally deals with offenses committed by young people, there is a range of specific reasons why a matter might be heard in a different court.

6.2 Media Identification

The public is excluded from children’s courts, and there are prohibitions on publishing the names of young people who appear before the courts. In general it is an offense to publish or broadcast the name or other identifying characteristics of a young person appearing before or convicted by the children’s court. This is to avoid future stigmatization of the young person and to ensure maximum opportunities for personal growth and development.

While all states and territories (except the Northern Territory) have a general prohibition on identifying young people, the extent of the prohibition and the circumstances in which publication can occur differ ( Australian Law Reform Commission, 2005 , 552–553). For example in New South Wales the identification of a young person age 16 and above is allowed, if they consent. For young people below the age of 16 and unable to consent, the court may allow identification if it is satisfied that this is in the public interest. Identification of young people convicted of serious indictable offenses in the higher courts is permitted. The court must be satisfied that identification is in the interests of justice and the prejudice to the child does not outweigh those interests ( Cunneen and White, 2011 , 262).

6.3 Sentencing Young People

It is important to recognize that most matters that are heard in the children’s courts proceed on the basis of a guilty plea by young people. Nationally, around 80 percent of matters proceed on this basis ( Cunneen and White, 2011 , 263). The high rate of guilty pleas has important implications for the administration of justice in the children’s courts. There is no adjudication, and the court’s function is simply to decide what to do with offenders. If young people plead guilty, then the major role of the court is to decide on a penalty. The court is not reviewing evidence or how the evidence was obtained, nor is it playing a significant role in monitoring or remedying any abuses of young people’s rights.

Juvenile justice legislation in Australia articulates the sentencing principles applicable to the children’s court when sentencing. For example, section 150, subsection (1) of the Queensland Juvenile Justice Act 1992 states, inter alia, the following sentencing principles:

the general principles applying to the sentencing of all persons;

the general principles of juvenile justice;

special considerations;

the nature and seriousness of the offense;

the child’s previous offending history;

any information about the child that the court considers appropriate, including a pre-sentence report;

if the child is an Aboriginal or Torres Strait Islander person, any submissions made by a representative of the community justice group in the child’s community that are relevant to sentencing the child;

any impact of the offense on the victim;

[ omitted];

the fitting proportion between the sentence and the offense.

Special considerations are set out in section 150, subsection (2):

the child’s age is a mitigating factor on any penalty to be imposed and the nature of the penalty to be imposed;

a non-custodial order is better than detention in promoting the child’s reintegration into the community;

rehabilitation of a child is greatly assisted by the child’s family and opportunities to engage in educational programs and employment;

a child who has no apparent family support or opportunities to engage in educational programs and employment should not receive a more severe sentence because of the lack of such opportunities;

a detention order should only be imposed as a last resort and for the shortest possible period.

The sentencing principles set out in the Queensland legislation show the incorporation of general principles (specificity, determinacy, general and specific deterrence, rehabilitation, proportionality, frugality, denunciation, community protection, equality, responsibility) as well as attempting to delineate those principles specific to young people. While it is important that such principles are to be found in the legislation, they still tend to be generalized and represent a variety of goals.

Australian case law on sentencing juveniles has consistently held the principle of rehabilitation to be the most important consideration. However, the importance of rehabilitation as a primary consideration does not preclude the use of detention as a sentencing option, nor does it preclude any consideration of deterrence when sentencing. The objective seriousness or gravity of particular crimes may also demand the use of detention for the purpose of community protection in particular cases, for example in cases of murder, manslaughter, and gang rape. In these matters, community protection, denunciation, retribution, and general deterrence are important. However, these are clearly only envisaged in particularly serious cases and as a last resort. As NSW Chief Justice McClellan found:

The law recognises that when sentencing young offenders considerations of punishment and general deterrence should generally be regarded as subordinate to the need to foster rehabilitation. However, this principle will have less weight where the offending behaviour is such that the young person has conducted themself in a way that an adult does. When extreme violence has been used or the crime otherwise exhibits activities normally associated with an adult the need to protect the community may mean that deterrence and retribution must be given greater weight than might otherwise be the case. Age will be less of a consideration as offenders approach the age of 18. ( Lal-v.-R: PN-v.-R non-publication order [2007] NSWSC 445 at para 33)

6.4 Specialist Courts and Young People

In recent years, there has been an expansion of specialist drug courts to deal with adult offenders in most states of Australia. Specialist drug courts for juvenile offenders were also established in some states beginning with New South Wales in 2000. Eligibility for youth drug courts include young people between 14 and 18 years old who have a serious drug or alcohol problem, who have pleaded guilty to an offense over which the children’s court has jurisdiction, who are ineligible for a precourt diversionary option, who agree to go before the drug court, and who are likely to be sentenced to detention. In 2012, conservative state governments in New South Wales and Queensland abolished their youth and adult drug courts as cost-saving measures, despite positive evaluations of their outcomes.

Indigenous sentencing courts (Koori Courts, Murri Courts, and Nunga Courts) have been established for both adult and juvenile offenders in Victoria, Queensland, and South Australia since the early 2000s. The courts typically involve Aboriginal elders sitting on the bench with a magistrate. The elder can provide advice to the magistrate on the young person and about cultural and community issues. Offenders might receive customary punishments or community service orders as an alternative to detention. Indigenous courts may sit on a specific day designated to sentence Indigenous offenders who have pleaded guilty to an offense. The court setting may be altered to take account of Indigenous culture. The offender may have a relative or other support person present at the sitting. The magistrate confers with the elders and may ask questions of the offender, the victim (if present), and members of the family and community to assist with determining sentence. Evaluations indicate an increase in court appearance rates and greater compliance with court orders. Findings in relation to recidivism rates have been mixed ( Cunneen and White, 2011 , 174). In 2012 the Queensland government abolished the Murri court as a cost-savings measure.

6.5 Sentencing Options

Sentencing decisions by the children’s court are limited by the sentencing options available to the court. These sanctions (or dispositions) vary from one Australian jurisdiction to another. In general, the options available are set out in the legislation that governs juvenile justice in the particular state or territory. In some jurisdictions sentencing hierarchies have also been established in legislation (e.g., in New South Wales and Victoria). Such hierarchies set out the available penalties in order of severity. Sentencing hierarchies have been introduced to guide the court in selecting an appropriate penalty and to provide a greater degree of consistency in sentencing. Some legislation (e.g., in New South Wales and Victoria) prevents the court from imposing a sentence at one level unless it is satisfied that a sentence at a lower level of the hierarchy is inappropriate. Such requirements have been designed to require magistrates to justify the use of more severe penalties, to promote the use of noncustodial options, and to reinforce the use of detention as a sentence of last resort.

A typical sentencing hierarchy ranges from the most punitive disposition (detention) to the least intrusive, being dismissal with or without a criminal conviction. Although the actual sanctions available will vary from one state to another, we can construct a general picture of what is available to the children’s courts, and place them within a hierarchy ( Cunneen and White, 2011 , 264–265). The sanctions 4 available to Australian children’s courts, in order of decreasing severity, may include the following:

Detention in a youth training or juvenile detention center, usually for a maximum of two years. In some jurisdictions, and in particular types of cases, imprisonment in an adult facility may also be an option. In some jurisdictions, periodic detention, weekend detention, or home detention may also be an option.

Suspended detention . The court makes a detention order that it then suspends, subject to the young person meeting certain requirements (such as not to offend again). If the young person reoffends, then the original detention order is activated, plus any further sentence for the later offense.

Community service order, attendance-center order, and other special orders. Community service orders and attendance-center orders usually have maximum hours varying between 100 and 500, depending on jurisdiction. Special orders can relate, for example, to people with a mental illness or intellectual disability or to special orders made by a drug court.

Probation (usually up to two years) or other supervised order. These orders are similar to a good-behavior bond but have additional requirements, including supervision and meetings with a probation officer.

Fine or compensation and good-behavior bond (or recognisance) .

Fine or compensation (with the maximum possible fine limited by the court’s jurisdiction) .

Referral to a youth conferencing scheme . In some jurisdictions, the courts have the power to refer matters back to a youth conference.

Good-behavior bond or recognisance . These orders require the offender to be of good behavior for a certain period (usually up to two years) and usually do not involve supervision.

Undertaking to observe certain conditions. For example, school attendance or employment.

Dismissal of charges with or without either a reprimand or a criminal conviction recorded .

7 Community-Based Sanctions and Detention

Section 6 outlined the jurisdiction of the children’s court, sentencing principles, and the sentencing options available to the children’s court. A key issue that remains to be examined is the actual use of these sentencing options. This section considers the use of community-based sanctions and detention in more detail. I begin with a discussion of the NSW Children’s Court outcomes for 2012, which are shown in Table 1 . This data provides a typical view of court outcomes in Australian children’s courts. The data is based on the penalty imposed for the principal proven criminal offense determined by the court.

Source: New South Wales Bureau of Crime Statistics and Research (2012, p. 70).

The major sentencing option used in the NSW Children’s Court is a bond (31.5 percent of all penalties). These may include some supervision requirements (such as reporting to the local juvenile justice officer), or they may be without supervision but make a general requirement of the individual to be of good behavior, attend school or work, or not associate with certain people. Bonds must be for a specified period and can be imposed for a maximum of two years duration. The next major category is probationary orders (20.2 percent). Probation orders usually require supervision through regular meetings with a juvenile justice officer and may require other conditions. Probation orders are a more serious sentencing option than a bond.

The courts can also choose to dismiss the criminal matter with a caution, which occurs in 13.1 percent of outcomes. These mostly involve public order offenses, minor assaults, and more minor theft offenses. Monetary fines are imposed by the court in 6.3 percent of cases. Fines are often used for public order, theft, and motor vehicle-related offenses ( NSW Bureau of Crime Statistics and Research, 2013 , 68–70). The courts can also choose to impose a nominal penalty, record a conviction against a person without a penalty, or refer a matter to a youth justice conference. These various alternatives are captured within the category of “other proven outcomes” and comprised 14.4 percent of all penalties.

Community service orders are the most serious penalty available to the court before a sentence of detention. These comprise 3.9 percent of sentencing outcomes. A community service order is a direct alternative to a detention order and cannot be imposed unless the court is satisfied that the young person is suitable for community service and that there is work available in the person’s local area. The maximum number of hours for an order is 100 for a child under 16 years of age and 250 hours if the child is16 years or older.

The most serious penalty a children’s court can apply is a detention order. Detention orders comprise 10.6 percent of penalties. Detention orders can be made for up to two years. If the sentence is longer than six months, the court must impose a nonparole period. A detention order is a sanction of last resort, and the court must give reasons why it was wholly inappropriate to impose any other penalty. The court can choose to suspend the sentence of detention for up to two years. However, if it is breached, for example by further offending, the young person in all likelihood will be imprisoned.

The detention rates of young people in Australia steadily declined from the 1980s through the early 2000s. At the beginning of the early 1980s, the rate of juvenile detention was 64.9 per 100,000 of the youth population ( Richards and Lyneham, 2010 , 15). It reached a low point in 2004 at 25.5 per 100,000 and has risen since then. By 2012 the juvenile rate of detention was 37.6 per 100,000 ( SCROGSP, 2013 , Table 15A.186). However, even after the more recent increases, the juvenile detention rate was only slightly more than half than it had been 30 years previously.

Much of the change over the past three decades has been driven by the growth in more formalized precourt diversionary options and the development of a range of intermediate sanctions that can be imposed by the children’s court, as well as various legislative changes that have impacted on sentencing, ranging from the removal of indeterminate sentences for juveniles in the early 1980s to the establishment of sentencing hierarchies and principles applicable specifically to juveniles. In addition, the clearer separation of child welfare matters from juvenile offending were an important part of changes to court processes and the “deinstitutionalization” movement. While the needs of a child still find expression in juvenile justice legislation (through, for example, considerations relating to the importance of school, employment, and family), the principles relating to proportionality, frugality, rehabilitation, and detention as a sanction of last resort have likely impacted on the frequency and length of detention.

While the reasons noted here for declining detention numbers relate primarily to sentenced young people, another important change has been the increasing proportion of juveniles who are being held in detention on pretrial remand. The main driver behind increased rates of detention since 2004 has been the growing numbers of unconvicted young people held on remand. I consider this issue more fully in Section 8 .

8 Key Issues

As Muncie (2013 , 43) has noted, from its child-saving rhetoric of the nineteenth and early twentieth century, juvenile justice has developed into a complex set of powers and procedures that are “beset by … ambiguity, paradox and contradiction.” These ambiguities and contradictions are evident in a range of areas in juvenile justice in Australia. On the one hand it is possible to point to the long-term impact of diversion and deinstitutionalization, with greater emphasis on restorative justice and formalized processes for police diversion, as well as the historical low rates of incarceration. However, at the same time we have seen more punitive examples of sentencing options, such as the introduction in 2013 of “boot camps” in Queensland as a sentencing option, there have been ongoing issues of police targeting of young people in public places, and there has been an increased use of pretrial remand for young people across all jurisdictions. In addition, a key feature of juvenile justice in Australia is the significant overrepresentation of Indigenous young people in detention and their relative lack of access to precourt diversionary options. In the final section of this essay I turn to some of the key issues affecting juvenile justice in Australia.

8.1 Public Order Policing

Public order legislation, particularly offensive language and offensive behavior provisions, as well as various search and move-on powers, is relied upon heavily by police in dealing with young people in public places. The problem with much public order legislation and its enforcement is that the legislative provisions are inevitably vague and open-ended, with the characterization of the behavior left to the discretion of the police. While the legislation that underpins police powers in public places may be technically age-neutral, in practice its implementation frequently has a disproportionate impact upon young people, in particular young people who are Indigenous. In other words, the use of public order legislation is often highly targeted and socially patterned.

For example, in New South Wales the carrying of a knife (and other “implements” such as scissors, nail files, and screwdrivers) in a public place is a criminal offense under the Law Enforcement (Powers and Responsibilities) Act. The legislation provides police with the power to search an individual who they suspect is in possession of prohibited implements. Under the same legislation police also have the power to require a person to “move on,” where their behavior or presence constitutes an obstruction, harassment, or intimidation or causes fear in public places.

The legislation has been monitored by the NSW Ombudsman who found that young people from 15 to 19 years of age were much more likely to be stopped and searched for knives and prohibited implements than any other age group. Further, the proportion of “productive” searches was relatively low for young people. In other words, there were a particularly high number of searches of young people in which no prohibited implement was found. In a similar vein, it was observed that a high number of young people were given directions by police to move on. The Ombudsman found that 48 percent of all persons moved-on were aged 17 years or younger, while 42 percent of all persons searched were juveniles ( NSW Office of the Ombudsman, 1999 , 37). Research has also indicated that the legislation is used far more frequently in townships where there are a large proportion of Indigenous people. In fact, the searches and move-on directions in these towns occur at a rate 30 times great than the state average ( Cunneen and White, 2011 , 162).

8.2 Pretrial Detention

A particular issue of concern has been the development of more restrictive approaches to bail. These changes have led to a new form of containment through the reinterpretation of the meaning of bail. The presumption in favor of bail has been removed for a very wide range of people, and the right to the presumption of innocence and not to be imprisoned without trial and conviction has been significantly eroded. Exceptions to the presumption in favor of bail used to relate to situations where there was a grave concern that the person would not attend court or would commit serious offenses if not detained. Through changes in legislation, the presumption in favor of bail has been removed for a wide range of people: anyone on a bond or order who reoffends, anyone who has previously failed to appear in court, and anyone who has previously been convicted of an indictable offense. The potential group includes a large range of relatively minor offenders who are also repeat offenders.

In addition, there have been other changes that adversely affect young people in relation to bail and other court orders. For example, in New South Wales the Non-Association and Place Restriction Act 2001 provides the power to prohibit or restrict a person from associating with other specified people (including communicating by any means) and to prohibit or restrict a person from frequenting or visiting a specified place or district. These orders can relate to bail conditions and parole conditions. The orders can be used with children and adults. The legislation was targeted at young people as an “anti-gang” measure but in reality does little or nothing to break up criminal gangs. Instead, it is used mainly against young people who are alleged to have committed minor public order, property, and drug offenses. The orders have been used in a way that restrict young people’s access to legitimate and necessary services, such as health centers, drug and other counseling services, legal services, and welfare services.

As a result of these changes, we have seen a long-term trend in the increasing proportion of young people who are remanded in detention prior to their court appearance. In the early 1980s, only 20 percent of the detention population was comprised of young people held on remand. By the late 1990s, the proportion had grown to around 40 percent. However, consistently over the past decade more than 50 percent of the juvenile detention population were on remand ( Cunneen and White, 2011 , 297–298; see also Richards and Renshaw, 2013 ).

8.3 The Racialization of Youth Justice

One of the most problematic and enduring features of juvenile justice in Australia has been the dramatic overrepresentation on Indigenous young people. In brief, Indigenous young people are 31 times more likely to be in detention than non-Indigenous youth, and this level of overrepresentation has been increasing over recent years. The increase in Indigenous overrepresentation is being driven particularly by the growth in remand rates ( AIHW, 2012 , vii, 10). On any one day in Australia, more than half of all young people in detention are likely to be Indigenous (AIHW, 2013, 5). Indigenous young people are also likely to spend longer periods in detention than non-Indigenous youth ( AIHW, 2012 ). There is a complex range of interacting factors that contribute to the overrepresentation of Indigenous young people in juvenile justice. These factors include contemporary high levels of socioeconomic disadvantage, the historical effect of past discriminatory policies (such as extensive Indigenous child removal policies by the state), and contemporary differential treatment by juvenile justice agencies (Cunneen and White, 2013, 71–72, 151–157; SCROGSP, 2011 ).

At the early stages of the juvenile justice system, Indigenous young people are less likely to receive the benefit of a police diversionary alternative to the formal processes of the children’s court. They are less likely to be cautioned by police than non-Indigenous young people. This disproportionate use of cautions is particularly important, given that the majority of young people cautioned at the beginning of their contact with juvenile justice agencies do not go on to have further contact with the juvenile justice system and have lower reoffending rates than young people appearing in either conferencing or court ( Cunneen and White, 2011 , 162–163). The evidence also suggests that Indigenous young people are not being referred as frequently to youth justice conferences as non-Indigenous youth. In addition, there is also lower use of court-attendance notices compared to arrest and bail for Indigenous youth ( Cunneen and White, 2011 , 163–167). The failure to use the less serious diversionary options can have long-term consequences of entrenching Indigenous young people within the juvenile justice system. Overall, more than two-thirds of Indigenous young people apprehended by police were sent to a children’s court. In contrast, the majority of non-Indigenous young people received some type of diversionary non-court option, with only one in three going into the formal court system ( SCROGSP, 2011 , 10.46).

8.4 Human Rights

The Australian government is a signatory to the UN Convention on the Rights of the Child. Australia does not have a bill or charter of rights; therefore international human rights standards are particularly important in ensuring safeguards for young people. The National Children’s Commissioner is part of the Australian Human Rights Commission and has the function of monitoring and reporting on the enjoyment and exercise of human rights by children in Australia ( National Children’s Commissioner, 2013 ). It is the responsibility of the federal government to ensure that Australia complies with its human rights obligations.

The UN Committee on the Rights of Child has been critical of Australia’s human rights compliance in relation to children and young people and specifically in relation to juvenile justice. The Committee found in its recent review of Australia’s progress in implementing the Rights of the Child that federalism in Australia had led to inconsistent and fragmented recognition of children’s rights. It recommended the enactment of a national Child Rights Act ( UN Committee on the Rights of the Child, 2012 , para. 12). The “serious and widespread discrimination faced by Aboriginal and Torres Strait Islander children,” including their overrepresentation in the criminal justice system, was especially noted ( UN Committee on the Rights of the Child, 2012 , para. 29).

The Committee on the Rights of Child found that “the juvenile justice system of the State party [Australia] still requires substantial reforms for it to conform to international standards” (2012, para. 82). There was a range of issues that were of particular concern to the Committee. These included the failure to raise the minimum age of criminal responsibility above 10; the failure to remove 17-year-olds from the adult justice system in Queensland; the failure to develop alternatives to children’s court proceedings for children with mental illness or intellectual disability who were charged with criminal offenses; the failure to ensure that children were not held in adult prisons; the failure to abrogate the Western Australian mandatory sentencing legislation for persons under the age of 18; and the need to establish an effective mechanism for investigating cases of abuse in youth detention centers ( Committee on the Rights of Child, 2012 , paras. 82–84).

9 Conclusion

Australia has a long history of treating juveniles separately from adults in the criminal justice system. The children’s courts established in the late nineteenth century were among the first in world. Despite this long history, there are significant limitations to the operation of juvenile justice in Australia. This essay has touched on some of the more pronounced issues. 5 While generally there was decline in the use of detention for juveniles from the 1980s through to the early part of the twenty-first century, this trend appears to have reversed, and most significantly there has been an increase in juveniles detained pretrial. These changes are reflective of a more punitive approach toward young people—a trend that is running in contradistinction to the emphasis on diversion.

The contradictory relationship between juvenile diversion and the demands for tougher sentences, zero-tolerance policing in public spaces, and the significant extension of police powers are constantly played out in a variety of conflicting law and policy approaches to juveniles. Australia was among the first countries during the 1990s to develop restorative justice processes for young people with the introduction of youth justice conferencing. Yet Australia has also been consistently criticized by the United Nations for its low minimum age of criminal responsibility, and there is currently no commitment at state or territory level government to increase the age above 10 years. In addition Queensland still stands defiantly outside the international community by treating 17-year-olds as adults.

However, the greatest tragedy besetting juvenile justice in Australia is the unacceptable rate at which the country’s First Nations young people are criminalized and incarcerated. The simple fact that 50 percent of young people locked behind bars are Indigenous, although they comprise only 3 percent of the total population, speaks eloquently to the racialization of juvenile justice and the differential standing a young person has depending on their background.

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Muncie, John . 2013 . “ International Juvenile (In)justice: Penal Severity and Rights Compliance. ” International Journal of Crime, Justice and Social Democracy 2(2): 42–63.

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Richards, Kelly , and Lyneham, Matthew . 2010 . Juveniles in Detention in Australia, 1981–2008 . Canberra: Australian Institute of Criminology.

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The common law doctrine of doli incapax provides a rebuttable presumption that from 10 years of age to 14 years of age a child cannot possess the requisite knowledge to form or possess a criminal intent. The prosecution must demonstrate that the child knew that the act was seriously wrong as opposed to naughty or childish mischief.

“Apprehension” here refers to police proceeding against a young person who has allegedly committed an offense. This includes arrest, summons before a children’s court, or referral to a diversionary option.

For a discussion of the current challenges faced by Australian children’s courts from the perspective of judges and magistrates who work in the courts, see Sheehan and Borowski (2013) .

Note that the actual terminology used in legislation for each of the sanctions listed varies somewhat between different Australia states and territories.

Length constraints restrict the consideration of other issues such as the special needs of young people with mental illness and cognitive disabilities and of young women within juvenile justice.

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The American Juvenile Justice System Essay

The American juvenile justice system has been in place for years, but it is becoming critical in helping young offenders in the country. The system has helped in transforming the lives of many youths who were almost losing focus on their future. It has helped instill discipline and respect for the law among youths who were almost giving up. In this study, the researcher will investigate the increasing importance of the system and what stakeholders can do to improve the services it offers. The study will use both primary and secondary sources of data to respond to the research questions. Mixed methods will be used when analyzing primary data.

Introduction

Juvenile justice is increasingly becoming important in the United States as society struggles to offer guidance to young offenders. According to Morris (2015), minors may engage in criminal acts or other unlawful activities that force law enforcement officers to arrest them and arraign them in court. Most of them are pushed into such acts by peer pressure. The desire to be accepted by peers may make a child do things that it would not have done under proper guidance. It is the reason why juvenile justice has become increasingly important in society. Once these minors are presented in court, they must be made to understand their crime. The system must make them understand that every action and decision they make has consequences. However, it must be done in a way that will not completely ruin their future. The system must be firm enough to make them understand that laws must be obeyed, while at the same time it should be lenient to offer them the opportunity to become better citizens in the country. The state governments within the country are taking juvenile justice seriously by employing more people to help transform young offenders into useful members of the society who pose no threat to anyone. In this paper, the researcher seeks to investigate the relevance of juvenile justice within the justice system in the country.

Purpose Statement

The United States is spending a lot of resources on juvenile justice within the country. It means that this is a very important area within the country’s justice system. The purpose of this study is to clearly outline and discuss the importance of juvenile justice in modern American society. The paper will look at how juvenile justice helps in transforming young offenders into better members of the society who can actively engage in various socio-economic and political activities. It will look at how stakeholders can work very closely to ensure that young offenders are helped to avoid bad companies and to desist from untoward behavior. The research should offer informed recommendations on areas within the juvenile justice that need improvement to further protect the younger generation in the country.

Literature Review

The youth in the United States have a critical role to play in society today and in the future. It is the responsibility of the government and other stakeholders to ensure that they develop into responsible law-abiding citizens. According to Siegel (2017), it is the responsibility of the parents and teachers to nurture children to become successful people in society. However, in the current American society where both parents are forced to work as a way of offering a better life for the family, most of the time they spend very little time with their children. It becomes worse for single parents (Cox, Allen, & Hanser, 2013). They have to provide for the family while at the same time guide them to become responsible citizens of the country. The task can be overwhelming. That is why some of the children deviate from accepted social norms. They turn to social media and peers to learn more about life. They easily get misled into practices they did not intend to do. Such problems are also common among orphans. The absence of parents means that such children have to turn to the world to learn about life.

The juvenile justice system, though considered reactionary by some critics, seeks to help young offenders to redefine the purpose of their life in the society. According to Shoemaker (2013), there are cases where minors react based on their past experienced and end up committing major crimes without having the intent. Such cases are common among children with abusive parents or guardians. A good example was a murder that was committed by two young girls aged 14 and 19 years in Louisville in Kentucky on August 16, 2016. The two girls were given a ride by a 53-year-old man. An argument arose when the man tried asked them to help him pick a drug. One of the girls picked a gun a fired four shots at the man. When the man tried to escape, the other girl picked the gun and fired at him point-blank, killing him on the spot. When the two girls were grilled, the 14-year old girl confessed to the murder. A background check revealed that she had very abusive guardians. The other girl was once raped and she never reported the matter to the authorities, fearing the possible repercussions (Siegel, 2017). That explains why they were so explosive when reacting to the angry man.

In such cases, a child may commit very serious crimes not because they had the intention to but because they are reacting to things that are frustrating their lives (Tanenhaus & Zimring, 2014). The justice system appreciates that such children can be rehabilitated. Through therapy and proper care, they can be helped to overcome the pain that lies deep in their hearts. That is why the justice system came up with juvenile justice to help such children have a different view towards a life away from their abusive families. It has helped many children to become better members of society. Siegel (2017) says that more still needs to be done to help the institution to become more efficient in helping minors. The report also shows that the number of minors who find themselves in repeat offenses after successfully going through the system is significantly reducing. It means that the system is working well in transforming young offenders. Most of them leave these institutions having gained skills that they can use to support themselves in the society. Those who came from abusive homes have been helped to find alternative homes where they can have peace of mind and focus on developing a better future for themselves (Shoemaker, 2013). The fact that most of these young offenders do not find themselves back in courts for similar or related offenses is a clear demonstration that the system is working. The facilities and human resources may be overstretched, but the outcome is satisfactory.

Research Questions and Hypothesis

When planning to conduct research, Dowd (2015) says that it is important to come up with research questions and hypotheses. The research questions define the kind of data that the researcher will be looking for in the field. The hypothesis shows what the researcher thinks about the possible outcome of the study. The following are the primary research questions that will be used in this study.

How relevant is the juvenile justice system in helping young offenders to transform into responsible members of the society?

What are the main challenges that the juvenile justice system faces in the United States?

What can be done to address these challenges to enhance its efficiency in helping young offenders?

The following is the hypothesis proposed based on the first question above.

H1. The juvenile justice system is very important in helping young offenders to transform into responsible members of society.

The researcher will use both primary and secondary sources of data to confirm the above hypothesis.

Research Methodology

Coming up with an effective research method defines how successful a research project would be (Siegel & Welsh, 2012). The methodology section explains how desired data will be collected, the analysis of the collected data, and the presentation of the findings. In this research project, the researcher will use both primary and secondary sources of data. Secondary data will be obtained from published sources such as books, journal articles, and reliable online sources. Primary data will be collected from a sample of the population.

Time and resource constraints cannot allow the researcher to collect data on the entire population of the stakeholders within the American juvenile justice system. As such, it will be necessary to sample a small manageable number of participants from the entire population. It will be important to talk to the judges, prosecutors, attorneys, counselors, children who are currently going through the system, and their parents or guardians. As such, stratified sampling will be necessary to ensure that information is collected from these different groups. From each category, the researcher will sample five participants, which means that the study will have 30 participants.

Data Collection

Data will be collected from the respondents through face-to-face interviews. The researcher will schedule meetings with individual respondents within the region and conduct the interview. Data will be collected using both structured and unstructured questions, as discussed in the sections below. The researcher considered face-to-face interviews to be very appropriate in gathering the needed data.

Research Tool

The researcher will use a questionnaire as the primary tool for collecting data from the respondents. The questionnaire will be developed early enough in readiness for the process. The questionnaire will be designed in a way that will make it possible to capture the demographic of the respondents. Any form of bias from the respondents will be captured within the demographic space. The questionnaire will be physically administered by the researcher in an interview.

Measuring and Analyzing Results

Data analysis will be conducted both qualitatively and quantitatively. The structured questions will help in collecting data that will be analyzed quantitatively. The unstructured questions will help in collecting data that will be analyzed qualitatively. Using the two methods of data analysis will enable the researcher to conduct a comprehensive analysis of the issue. In the analysis, the researcher will seek to bring out the significance of the juvenile justice system in transforming the lives of young offenders positively.

Presentation of the Results

After collecting data from the respondents and analyzing it using both qualitative and quantitative methods, it will be important to present the results in an easily comprehendible way. Dowd (2015) says that the presentation of results is critical in ensuring that readers can easily understand the message being communicated in a report. The results obtained from the quantitative analysis will be presented using graphs, figures, and charts for clarity. The graphical presentation of data is useful in simplifying the statistical findings of the study.

The American juvenile justice system is increasingly becoming important in the modern society where parents have very limited time to care for their children because of their need to achieve career success. It means that children are forced to turn to social media and peers whenever they want to find ways of addressing social issues in their lives. Some of them get misled in social media or by their peers and end up engaging in acts that are against the law. Such minors should not be condemned and thrown to jail to serve their sentence. Instead, they should be helped, whether in jail or on parole, to understand the mistake they did and the need to reform and become better members of the society. The system should determine why they acted in a given way and what can be done to help them change positively.

Cox, S. M., Allen, J. M., & Hanser, R. D. (2013). Juvenile justice: A guide to theory, policy, and practice . Thousand Oaks, CA: SAGE Publications.

Dowd, N. E. (2015). A new juvenile justice system: Total reform for a broken system . New York, NY: New York University Press.

Morris, M. W. (2015). Pushout: The criminalization of Black girls in schools . New York, NY: The New Press.

Shoemaker, D. J. (2013). Juvenile delinquency . Hoboken, NJ: John Wiley & Sons Publishers.

Siegel, L. A. (2017). Juvenile delinquency: Theory, practice, and law . Hoboken, NJ: Wadsworth.

Siegel, L. J., & Welsh, B. (2012). Juvenile delinquency: Theory, practice, and law . Melbourne, Australia: Cengage Learning.

Tanenhaus, D. S., & Zimring, F. E. (2014). Choosing the future for American juvenile justice . New York, NY: New York University Press.

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History Of The Juvenile Justice System Essay

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In order to understand where the juvenile justice system is today, we need to look back and understand the history of the juvenile justice system. When the first settlers arrived in America, they brought along the juvenile justice system that was in effect in England. This system evolved and improved through the 1800s. During the 1900s, landmark cases changed the course of juvenile justice in the United States. Unfortunately, the present juvenile system is more concerned with punishment than rehabilitation. Reformers are working to change the current juvenile justice system as it is too harsh. First, let us look at the English roots of our juvenile justice system.

Much of our early common law was based on the ideas of British lawyer, William Blackstone (ABA, 2011). During the late 1700s, to be charged with a crime, a person had to have intent to commit the crime and the person had to commit an illegal act (ABA). Based on this definition, Blackstone determined that anyone under seven was considered an infant and unable to understand completely his or her actions making it impossible to charge infants with felonies (ABA). Juveniles over fourteen years old could be sentenced as adults (ABA). The problem area involved what to do with juveniles between the ages of seven and fourteen. If the courts determined that a child between seven and fourteen understood right and wrong, he or she could be sentenced as an adult (ABA). Since children could be sentenced as adults, they could be sentenced to death (ABA).

The 1800s brought improvements to the juvenile justice system in the United States. New York City’s “Society for the Prevention of Juvenile Delinquency” built the first center to house convicted juveniles (ABA, 2011, Lawyershop.com, 2008). Convicted minors in New York City could now live separately from convicted adults. Later, in 1855, Chicago opened the first reform school in the nation with the goal of rehabilitation of juvenile offenders (ABA, 2011). The state of Illinois proved to be progressive regarding juvenile offenders because in 1899, the first juvenile court in the country opened in Cook County, IL (ABA). During the next twenty-five years, many other states created juvenile justice systems (ABA). The juvenile courts worked with reform schools to rehabilitate, not punish, juvenile offenders (ABA). A popular theory at this time was that of parens patriae which means that the state stepped in as the guardian of the convicted juveniles (ABA). During the late 1800s and early 1900s, juvenile cases were considered civil, not criminal (ABA). The goal of the juvenile justice system was to teach juvenile offenders how to become responsible and law-abiding citizens (ABA).

The 1960s brought major changes to the juvenile justice system. The best way to illustrate these changes is to look at some landmark cases. In the 1960s, a juvenile named Morris Kent had several encounters with the law beginning at the age of fourteen (Kent v. United States, 383 U.S. 541 (1966)). Finally, Kent’s family hired a lawyer. The lawyer had a doctor perform a psychiatric examination on Kent. The doctor determined that Kent was mentally ill and needed to be placed in a psychiatric hospital. At this point, the judge in Kent’s case opted “to waive jurisdiction” and send “Kent’s case to a criminal court” (ABA, 2011). Kent’s lawyer tried to argue that if Kent received psychiatric treatment, he could be rehabilitated but the juvenile court did not listen (Kent v. United States). Finally, the United States Supreme Court heard Kent’s case and decided that Kent had a right to a hearing and a right to know the reasons the juvenile court waived jurisdiction (ABA, 2011). This was a step in the right direction of giving minors their due process rights.

The next year brought another landmark case regarding the juvenile justice system. This case concerned a juvenile named Gerald Gault. Gault happened to be “with another boy who stole a wallet from a woman’s purse” so Gault received probation (ABA, 2011). While on probation, Gault was accused of making an obscene phone call (ABA). Because of this accusation, Gault was taken into custody (ABA). During the case of In re Gault, 387 U.S. 1 (1967), Gault and his family never heard what he was being charged with. No witnesses came forward, including the person he supposedly called. With no evidence, the judge sentenced Gault to “Arizona’s State Industrial School until he turned 21” (In re Gault).

Naturally, Gault’s parents appealed with the argument that their son had not received due process and his right “to a fair trial had been violated” (In re Gault). The Supreme Court heard the case and “ruled in favor of Gault” (In re Gault). The Supreme Court declared that juveniles had the right to due process including a “notice of the charges brought against them, a right to legal counsel, the right against self-incrimination, and the right to confront and cross-examine witnesses” (In re Gault).

Not everyone was happy with the decision regarding the Gault case. Justice Stewart feared requiring that juveniles receive due process was moving juvenile justice from rehabilitation to criminal proceedings. Justice Stewart said in his dissent that instead of working to find a solution to juvenile delinquency, the juvenile courts would now function like the criminal courts where the goal was to convict and punish offenders.

Between the decisions in Kent and Gault, the way had now been paved for state juvenile courts to waive their right to hear a case and send juveniles to be tried in criminal court. The juvenile courts may waive their rights three ways: Judicial waiver, statutory exclusion, and concurrent jurisdictions (PBS, 2011). Each state has its own juvenile court system and state laws. Almost every state allows juvenile court judges to waive their rights and remand the case to criminal jurisdiction (PBS). Statutory exclusion means that by statute, some states may choose to prohibit certain violent crimes from being tried in juvenile court (PBS). In those cases, juveniles must be tried in adult criminal courts (PBS). In some states, depending on the juvenile’s age, offense, and previous record, the juvenile may be “under the jurisdiction of both the juvenile and criminal courts” (PBS). When this happens, the prosecutor may decide where to try the case (PBS). The trend of statutory waivers is increasing which means more minors are being tried in adult courts (PBS).

A modern case that illustrates what happens to juvenile offenders in adult criminal courts is Graham v. Florida, 130 S. Ct. 2011 (2010). When Graham was sixteen, he and some friends attempted robbery of a restaurant. One of Graham’s friends hit a “restaurant manager in the head with a metal pipe” (Graham). Graham was charged with “armed burglary with assault or battery and attempted armed robbery” (Graham). Graham pleaded guilty and received two three-year sentences of probation (Graham). The next year, Graham was arrested for two more robberies (Caselli, 2011). After a brief chase, Graham was apprehended with three handguns (Caselli). This time, the state charged Graham with probation violation, “armed burglary, and armed home invasion robbery” (Caselli). Even though Graham’s attorney asked for a “minimum sentence of five years”, the State requested a forty-five year sentence (Caselli). The judge ignored both recommendations and sentenced Graham to life imprisonment on the armed burglary charge, which is the maximum sentence for this crime (Graham, 2010).

Unbelievably, Florida abolished its entire parole system which meant that Graham had no possibility of being released (Caselli, 2011). Graham’s case finally reached the United States Supreme Court, which struck down juvenile life sentences without parole (JLWOP) in non-homicide cases (Graham, 2010). This is a step in the right direction in rehabilitating juveniles in the United States. The Supreme Court stated that JLWOP sentences are the second most severe penalty after the death penalty (Graham). Juveniles sentenced to life without parole have no hope of rehabilitation, as these juveniles will never be released from prison (Graham).

Juvenile Life Without Parole sentences not only take away the chance for rehabilitation, they also ignore the fact that youths may grow out of committing crimes. The MacArthur study of juveniles suggests that juveniles are not able to weigh their decisions or think of long term consequences (Sacca, 2009). Juveniles are more susceptible to peer pressure (Sacca). Adult cognitive functioning allows adults to weigh the consequences of their decisions and resist peer pressure (Sacca, 2009). Sentencing children to life sentences for anything less than murder does not give children a chance to prove themselves out in the world as adults.

In regards to JLWOP sentences, the United States is falling behind the rest of the world as to how we treat juvenile offenders. “The United Nations Convention on the Rights of the Child” struck down JLWOP sentences (Caselli, 2011). Currently, 132 countries have ratified the decision to abolish JLWOP sentences (Sacca, 2009). Unfortunately, the only two members of the United Nations to still impose JLWOP sentences are the United States and Somalia (Caselli, 2011).

The state of Michigan is a prime example of how JLWOP sentences have careened out of control. Today, in Michigan, 307 people are sentenced to life without parole for crimes committed before their eighteenth birthday (Sacca, 2009). Alarmingly, 146 of the 307 were sentenced to life without parole when they were sixteen or younger at the time of the offense (Sacca). These figures are for homicides but some minors did not commit the actual murder. (Sacca). Some minors were convicted on aiding or abetting charges (Sacca).

Other states have taken a step in the right direction regarding the death penalty in the juvenile justice system. The Missouri Supreme Court noted in State ex rel. Simmons v. Roper, 112 S.W.3d 397 (2003) that eighteen states will not execute juveniles. Twelve states will not execute anyone, including juveniles (Simmons). Recently, five states have increased the age for executions to eighteen (Simmons). Therefore, the Missouri Supreme Court reversed Simmons’s death penalty and sentenced him to life in prison with no chance of parole (Simmons). Simmons was seventeen at the time of the crime. The crime consisted of kidnapping, stealing, burglary, and first-degree murder. Simmons was originally sentenced to death by the trial court. By the time Simmons’ case arrived at the Missouri Supreme Court, the Court ruled that the Constitution forbids executing anyone who is under eighteen at the time of the crime in question. The Court reversed Simmons’ death sentence to life in prison with no chance of parole. In Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005), the United States Supreme Court agreed. So now, no minor in the United States will be executed for any crime.

The pendulum of juvenile justice in the United States has swung back and forth between imposing death penalties on juveniles to rehabilitation of juveniles. Research shows that at the beginning of our country, juveniles were executed. Then the 1800s brought rehabilitation. Somehow, the 1900s brought harsh justice to juveniles, including life sentences without parole and the death penalty. Execution of minors in the United States has now been declared unconstitutional. The harshest punishment a juvenile may receive now is life in prison without parole.

American Bar Association. (2011, June 29). The history of juvenile justice. Retrieved from http://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authc heckdam.pdf. Caselli, L. (2011). General law division: Case note: Criminal law – One small step for juveniles, one giant leap for juvenile justice. 11 Wyo. L. Rev. 269. Graham v. Florida, 130 S. Ct. 2011 (2010). In re Gault, 387 U.S. 1 (1967). Kent v. United States, 383 U.S. 541 (1966). Lawyershop.com. (2008). History of america’s juvenile justice system. Retrieved from

http://www.lawyershop.com/practice-areas/criminal-law/juvenile-law/history. Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005). Sacca, C. J. (Spring, 2009). Note: A second chance: Michigan’s progressive shift in social

policy to rehabilitate its mentally ill and juvenile defendants. 86 U. Det. Mercy L. Rev.

559. State ex rel. Simmons v. Roper, 112 S.W.3d 397 (2003). State Laws. (2011). Frontline: Juvenile justice. Retrieved from PBS online

http://www.pbs.org/wgbh/pages/frontline/shows/juvenile/stats/states.html.

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Recent ICM papers examine restructuring juvenile justice systems

March 28, 2024

By Anna Harshman

Juvenile justice systems vary widely between courts, and these cases are handled differently than others. Two recent Institute for Court Management Fellows research papers examine the impact of current and changing juvenile justice structures.

Imprisonment to Empowerment: Utilizing a Family-Centered Approach in Ohio Juvenile Courts focuses on the Department of Youth Services’ and the state legislature’s recommendations over the past 30 years that have resulted in many courts shifting from strictly punitive practices in juvenile cases to rehabilitation programs that involve families and communities in the offender’s reintegration process. By introducing resources such as the Reasoned and Equitable Community and Local Alternatives to the Incarceration of Minors (RECLAIM) program and the Behavioral Health/Juvenile Justice (BHJJ) initiative, Ohio has seen a decrease in the number of juvenile felony arrests. In 1994 there were 14,487 juvenile arrests, while in 2020 there were 3,075. It is likely that these programs played a significant role in this 79% decrease.

Most children entering the legal system have undergone a form of trauma, and studies have proven that youths with close familial relationships have increased mental health and higher predicted social and economic success. Knowing this, many Ohio courts have tested community-centered therapies such as Functional Family Therapy (FFT), which involves a therapist working closely with offenders and their families to develop a treatment plan. With a pilot of 900 cases, FFT resulted in a 34.9% decrease in felonies and a 30% decrease in violent crimes. Additionally, there has been a marked increase in assessment centers, which work with families to provide proactive assessments to help divert children from entering the court system. A lack of community support and economic barriers still prevent many Ohio courts from implementing these proven practices.

Length of Probation’s Impact on Juvenile Recidivism: Does a Ninety (90) Day Probation Termination Effect Juvenile Recidivism? examines the positive impact of providing children with a clear 90-day probation period despite many courts not giving a definitive timeline for probation. In a sample of 1,337 juvenile cases in Brevard County, Florida, this study found that when juveniles were instructed that their probation would be terminated if they met the probation conditions for 90 days, only 18% made this primary benchmark. However, 83% of the successful children had no reoffenses for the next year. Furthermore, there were decreases in the number of times children had to be transported to court, arrests, and detentions, and costs of supervision for families. Before defined probationary periods were implemented, no juveniles had been able to complete their probation in less than eight months.

What does the juvenile justice system look like in your state? Email us at [email protected] or call 800-616-6164 and let us know. Follow the National Center for State Courts on Facebook , X , LinkedIn , and Vimeo . For more Trending Topics posts, visit ncsc.org/trendingtopics or subscribe to the LinkedIn newsletter .

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