JUVENILE JUSTICE: HISTORY AND PHILOSOPHY

Ideological changes in the cultural conception of children and in strategies of social control during the nineteenth century led to the creation of the first juvenile court in Cook County, Illinois, in 1899. Culminating a century-long process of differentiating youths from adult offenders, Progressive reformers applied new theories of social control to new ideas about childhood and created the juvenile court as a social welfare alternative to criminal courts to respond to criminal and noncriminal misconduct by youths.

The U.S. Supreme Court's decision In re Gault, 387 U.S. 1 (1967), began to transform the juvenile court into a very different institution than the Progressives contemplated. Progressives envisioned an informal, discretionary social welfare agency whose dispositions reflected the "best interests" of the child. In Gault, the Supreme Court engrafted formal due process safeguards at trial onto juvenile courts' individualized treatment sentencing schema, although the Court did not intend to alter the juvenile court's therapeutic mission. In the decades since Gault, judicial decisions, legislative amendments, and administrative changes have modified juvenile courts' jurisdiction, purposes, and procedures. These changes have transformed the juvenile court and fostered a procedural and substantive convergence with adult criminal courts.

The origins of the juvenile court

Prior to the creation of juvenile courts, the common law's infancy defense provided the only special protections for young offenders charged with crimes. The common law conclusively presumed that children younger than seven years of age lacked criminal capacity, while those fourteen years of age and older possessed full criminal responsibility. Between the ages of seven and fourteen years, the law rebuttably presumed that offenders lacked criminal capacity. If found criminally responsible, however, states executed youths as young as twelve years of age. Historically, when the criminal justice system confronted a child offender, it faced the stark alternatives of criminal conviction and punishment as an adult, or acquittal or dismissal. Jury or judicial nullification to avoid excessive punishment excluded many youths from any controls, particularly those charged with minor offenses.

To avoid these unpalatable alternatives, in the early to mid-nineteenth century, the first age-segregated institutions—the House of Refuge—appeared in cities on the East Coast, and by mid-century, reformatories and youth institutions spread to the rural and Midwestern regions of the country. By the end of the century, the juvenile court appeared in Cook County (Chicago), spread to other major urban centers, and completed the process of separating the systems of social control of youths from adults.

Many legal features incorporated into the juvenile court first appeared in the laws creating the houses of refuge. Refuge legislation embodied three legal innovations: a formal agebased distinction between juvenile and adult offenders and their institutional separation; the use of indeterminate commitments; and a broadened legal authority, parens patriae, that encompassed both criminal offenders and neglected and incorrigible children. The legal doctrine of parens patriae —the right and responsibility of the state to substitute its own control over children for that of the natural parents when the latter appeared unable or unwilling to meet their responsibilities or when the child posed a problem for the community—originated in the English chancery courts to protect the crown's interests in feudal succession and established royal authority to administer the estates of orphaned minors with property. In 1838 parens patriae entered American juvenile jurisprudence to justify the commitment of a child to a house of refuge. In Ex parte Crouse, 4 Whart. 9 (Pa. 1838), the Pennsylvania Supreme Court rejected legal challenges to the peremptory incarceration of troublesome youths, noting that "The object of the charity is reformation . . . To this end, may not the natural parents, when unequal to the task of education, or unworthy of it be superseded by the parens patriae, or common guardian of the community? It is to be remembered that the public has a paramount interest in the virtue and knowledge of its members, and that, of strict right, the business of education belongs to it . . . . The infant has been snatched from a course which must have ended in confirmed depravity; and not only is the restraint of her person lawful, but it would be an act of extreme cruelty to release her from it" (4 Whart. at 11 (Pa. 1838)).

The progressive juvenile court

Economic modernization at the end of the nineteenth century transformed America from a rural agrarian society into an urban industrial one. Industrialization rapidly displaced the household economy and separated work from the home. Industrial modernization encouraged migration from the rural countryside and immigration from foreign countries to urban manufacturing centers. These population changes weakened informal systems of social control based in extended families, communities, and churches. Immigrants from southern and eastern Europe flooded into the burgeoning cities to take advantage of new economic opportunities, and they crowded into ethnic enclaves and urban ghettoes. The "new" immigrants' sheer numbers, as well as their cultural, religious, and linguistic differences hindered their assimilation and acculturation, and posed a significant nation-building challenge for the dominant Anglo-Protestant western Europeans who had arrived a few generations earlier.

Changes in family structure and functions accompanied the economic transformation. A reduction in the number and spacing of children, a shift of economic functions from the family to other work environments, and a modernizing and privatizing of the family substantially modified the roles of women and children. The ideas of childhood and adolescence are socially constructed. Culminating a trend that began centuries earlier, during this modernizing era the upper and middle classes promoted a new ideology of children as vulnerable, corruptible innocents who required special attention and preparation for life. The new vision of childhood led parents and others to differentiate and isolate children from adults, altered child-rearing practices, and imposed on parents the responsibility to protect the child from engagement with the wider society and simultaneously to mold, shape, and prepare her to realize her potential in it.

Modernization and industrialization sparked the Progressive movement that addressed social problems ranging from economic regulation to criminal justice and political reform. Progressive reformers believed that professionals and experts could develop rational and scientific solutions, and that benevolent government officials could intervene to remedy social and economic problems. Social changes associated with modernization, such as urbanization and immigration, posed problems of cohesion, social control, and assimilation. As informal social controls weakened, Progressive reformers placed increased reliance on formal organization to govern, to maintain order, and to oversee social change. Progressives attempted to "Americanize" the immigrants and poor through a variety of agencies of assimilation and acculturation to become sober, virtuous, middle-class Americans like themselves. The Progressives coupled their trust of state power with the changing cultural conception of children and entered the realm of "child-saving." In his study of the Progressive era and policies, historian Robert Wiebe wrote that "If humanitarian progressivism had a central theme, it was the child. He united the campaigns for health, education and a richer city environment, and he dominated much of the interest in labor legislation. . . . The most popular versions of legal and penal reform also emphasized the needs of youth. . . . The child was the carrier of tomorrow's hope whose innocence and freedom made him singularly receptive to education in rational, humane behavior. Protect him, nurture him, and in his manhood he would create that bright new world of the progressives' vision" (p. 169). Child-centered reforms, such as juvenile court, child labor, social welfare, and compulsory school attendance laws both reflected and advanced the changing imagery of childhood and Progressives' special concerns about poor and immigrant children.

Ideological changes in theories of crime causation led Progressives to formulate new criminal justice and social control policies. At the turn of the century, Progressive criminal justice reformers aspired to scientific status and sought to strengthen the similarities between the causal determinism of the natural sciences and those of the social sciences. Criminology borrowed both its methodology and vocabulary from the increasingly scientific medical profession. Positive criminology rejected "free will," asserted a scientific determinism of deviance, redirected criminological research scientifically to study offenders, and sought to identify the factors that caused crime and delinquency. Reformers assumed that criminal behavior was determined rather than chosen, reduced actors' moral responsibility for their behavior, and tried to change offenders rather than punish them for their offenses.

A growing class of social science professionals adopted medical analogies to "treat" offenders and fostered the "Rehabilitative Ideal" in criminal justice policies. A flourishing "Rehabilitative Ideal" requires a belief in the malleability of human behavior and a basic consensus about the appropriate directions of human change. The "rehabilitative" ideology permeated many Progressive criminal justice reforms such as probation and parole, indeterminate sentences, and the juvenile court, and fostered open-ended, informal, and highly flexible policies.

The juvenile court combined the new conception of children with new strategies of social control to produce a judicial-welfare alternative to criminal justice, to remove children from the adult process, to enforce the newer conception of children's dependency, and to substitute the state as parens patriae. The juvenile court's "Rehabilitative Ideal" rested on several sets of assumptions about positive criminology, children's malleability, and the availability of effective intervention strategies to act in the child's "best interests."

Progressive "child-savers" described juvenile courts as benign, nonpunitive, and therapeutic, although modern writers question whether the movement should be seen as a humanitarian attempt to save poor and immigrant children, or as an effort to expand state social control over them. The legal doctrine of parens patriae legitimated intervention and supported the view that juvenile court conducted civil rather than criminal proceedings. Characterizing intervention as a civil or welfare proceeding, rather than criminal, fulfilled the reformers' desire to remove children from the adult justice system and allowed greater flexibility to supervise, treat, and control children. Because reformers eschewed punishment, the juvenile court's "status jurisdiction" enabled them to respond to noncriminal behavior such as smoking, sexual activity, truancy, immorality, or living a wayward, idle, and dissolute life. Juvenile courts' status jurisdiction reflected the social construction of childhood and adolescence that emerged during the nineteenth century, and authorized pre-delinquent intervention to forestall premature adult autonomy and enforce the dependent position of youth. Girls appeared in juvenile courts almost exclusively for the status "offense" of "sexual precocity," and they often received more severe dispositions than did boys involved in criminal misconduct. Sexually active young women exercised the ultimate adult prerogative and posed a fundamental challenge to Victorians' sexual sensibilities and Progressives' construction of childhood innocence.

The juvenile court's "Rehabilitative Ideal" envisioned a specialized judge trained in social sciences and child development whose empathic qualities and insight would aid in making individualized dispositions. Judicial discretion, local diversity, and informal processes fostered many versions of juvenile courts that differed substantially in philosophy and practice. In a system of discretionary justice, neither procedural rules nor legal formalities constrained the judge. Social service personnel, clinicians, and probation officers would assist the judge to decide the "best interests" of the child. Progressives assumed that a rational, scientific analysis of facts would reveal the proper diagnosis and prescribe the cure. The factual inquiry into the child's social circumstances accorded minor significance to the specific crime because the offense indicated little about his or her "real needs." Because the reformers acted benevolently, individualized their solicitude, and intervened scientifically, they saw no reason to circumscribe narrowly the power of the state. Rather, they maximized discretion to diagnose and treat, and focused on the child's character, social circumstances, and lifestyle rather than on the crime.

By separating children from adults and providing a rehabilitative alternative to punishment, juvenile courts rejected the criminal law's jurisprudence and procedural safeguards such as juries and lawyers. Because parens patriae theory rested on the idea that the court helped the child rather than tried or punished the youth for a crime, no reasons even existed to determine a child's criminal responsibility. Court personnel used informal procedures and a euphemistic vocabulary to eliminate any stigma and implication of an adult criminal proceeding. They provided informal, confidential and private hearings, limited access to court records, "adjudicated" youths as "delinquent" rather than convicted them of crimes, and imposed "dispositions" rather than sentences. Theoretically, a child's "best interests," background, and welfare guided dispositions. Because a youth's offense provided only a symptom of his or her "real" needs, courts imposed indeterminate and nonproportional dispositions that potentially could continue for the duration of minority.

Procedure and substance intertwine in the juvenile court. Procedurally, juvenile courts used informal processes, confidential hearings, and a euphemistic vocabulary to obscure and disguise the reality of coercive social control. Substantively, juvenile courts used indeterminate, nonproportional sentences, emphasized treatment and supervision rather than punishment, and purportedly focused on offenders' future welfare rather than on past offenses. Despite their benevolent rhetoric, however, the Progressive "childsavers" who created the juvenile court deliberately designed it to discriminate, to "Americanize" immigrants and the poor, and to provide a coercive mechanism to distinguish between their own and "other people's children."

Juvenile courts resolved many cases informally and used probation as the disposition of first resort for the vast majority of delinquents. Juvenile court legislation and practice systematized and expended the use of probation as an alternative to institutions for younger offenders. Probation officers functioned as intermediaries to provide the court with information about the child and to supervise those youths whom the court returned to the community. Reformers envisioned probation as an alternative to dismissal rather than to confinement and used it to expand the scope of formal control over youths.

While probation constituted the disposition of first resort, Progressive reformers relied on institutional confinement as a disposition of last resort. Their feelings of tenderness did not cause them to shrink from toughness when required. The indeterminate and discretionary powers they exercised quickly to release some "rehabilitated" offenders also resulted in the prolonged incarceration of other "incorrigible" youths. Progressives' willingness to incarcerate some delinquents reflected their elevation of the power of the court over the family and their determination to save poor and immigrant children. They expanded the cottage-plan model in youth reformatories, used surrogate cottage parents to create a "normal" family environment within the institution, and attempted to promote a child's adjustment and development. They relabeled reformatories as "vocational schools" or "industrial training schools" to emphasize their nonpenal character and added academic and vocational education to their "rehabilitative" program. In the 1920s and 1930s the rising influences of psychology and psychiatry prompted institutional administrators to engraft a hospital therapy regime onto the family and school models. Social workers, psychologists, and psychiatrists regarded the hospital-child guidance clinic model as especially appropriate for juvenile institutions where staff diagnosed and cured delinquency.

While psychologisms and rehabilitative rhetoric lent symbolic legitimacy to the juvenile courts and its institutions, practical programs and clinical personnel never approached juvenile justice reformers' therapeutic aspirations or claims. Progressives' rehabilitative rhetoric functioned to assert the incompetence of children, to define a relationship of dependency between juveniles and the state, to legitimate institutional practices to an uncritical public audience, and to obscure the reality of correctional practices. Historians conclude that with only a few notable exceptions, such as Denver's Ben Lindsey, most juvenile court judges and probation personnel were mediocre and their programs ineffective. Probation staff rarely possessed the resources, services, or expertise necessary to assist young people. Institutions seldom provided conditions conducive to reform and rehabilitation, and most incarcerated delinquents' institutional experiences remained essentially custodial and punitive.

In their pursuit of the "Rehabilitative Ideal," the Progressives situated the juvenile court on a number of cultural, legal, and criminological fault lines. They created several binary conceptions for the juvenile and criminal justice systems: either child or adult; either determinism or free-will; either dependent or responsible; either treatment or punishment; either social welfare or just deserts; either procedural informality or formality; either discretion or rules. Juvenile court reforms since In re Gault have witnessed a shift from the former to the latter of each of these binary pairs in response to the structural and racial transformation of cities, the rise in serious youth crime, and the erosion of the rehabilitative assumptions of the juvenile court.

The Constitutional domestication of the juvenile court

During the 1960s, the Warren Court's civil rights decisions, criminal due process rulings, and "constitutional domestication" of the juvenile court responded to broader structural and demographic changes taking place in America, particularly those associated with race and youth crime. In the decades prior to and after World War II, black migration from the rural south to the urban north increased minority concentrations in urban ghettos, made race a national rather than a regional issue, and provided the political and legal impetus for the civil rights movement. The 1960s also witnessed increases in youth crime by the baby boom-generation that continued until the late 1970s. During the 1960s, the rise in youth crime and urban racial disorders provoked cries for "law and order" and provided the initial political impetus to "get tough." Republican politicians seized crime control and welfare as wedge issues with which to distinguish themselves from Democrats in order to woo white southern voters, and crime policies for the first time became a central issue in national partisan politics. As a result of "sound-bite" politics, since the 1960s, politicians' fear of being labeled "soft-on-crime" has led to a constant ratchetingup of punitiveness and changed juvenile justice ideology and practice.

These macro-structural and demographic changes eroded the rehabilitative premises of the Progressive juvenile court and undermined support for discretionary, coercive socialization in juvenile courts. A flourishing "rehabilitative ideal" assumes human malleability, the existence of effective techniques to change people, and a general agreement about what it means to be rehabilitated. Progressives believed that the new social sciences and the medical model of deviance provided them with the tools to reform people and that they should socialize and acculturate poor and immigrant children to become middle-class Americans like themselves. By the time of Gault, the Progressives' consensus about state benevolence, the legitimacy of imposing certain values on others, and what rehabilitation entailed and when it had occurred all became matters of intense dispute. The decline in deference to professionals and the benevolence of experts led to an increased emphasis on procedural formality, administrative regularity, and the rule of law.

During the turbulent 1960s, several forces combined to erode support for the rehabilitative enterprise and caused the Supreme Court to require more procedural safeguards in criminal and juvenile justice administration: left-wing critics of rehabilitation characterized governmental programs as coercive instruments of social control through which the state oppressed the poor and minorities; liberal became disenchanted with the unequal and disparate treatment of similarly situated offenders that resulted from treatment personnel's exercise of subjective clinical discretion; and conservatives advocated a "war on crime" and favored repression over rehabilitation. In the 1960s, the issue of race provided the crucial linkage between distrust of governmental benevolence, concern about social service personnel's discretionary decisionmaking, urban riots and the crisis of "law and order," and the Supreme Court's due process jurisprudence.

The Warren Court's due process decisions responded to the macro-structural and demographic changes, and attempted to guarantee civil rights, to protect minorities from state officials, and to infuse governmental services with greater equality by imposing procedural restraints on official discretion. The Supreme Court's Gault decision and later juvenile court cases mandated procedural safeguards in delinquency proceedings, focused judicial attention initially on whether the child committed an offense as prerequisite to sentencing, and demonstrated the linkages between procedure and substance in the juvenile court. In shifting the formal focus of juvenile courts from "real needs" to legal guilt, Gault identified two crucial disjunctions between juvenile justice rhetoric and reality: the theory versus the practice of "rehabilitation," and the differences between the procedural safeguards afforded adult defendants and those available to juvenile delinquents. Gault held that juveniles charged with crimes who faced institutional confinement required basic procedural safeguards including advance notice of charges, a fair and impartial hearing, assistance of counsel, an opportunity to confront and cross-examine witnesses, and the privilege against self-incrimination.

In In re Winship, 397 U.S. 358 (1970), the Court concluded that the risks of factual errors and unwarranted convictions and the need to protect juveniles against government power required states to prove delinquency by the criminal law's standard of proof "beyond a reasonable doubt" rather than by the lower "preponderance of the evidence" civil standard of proof. In Breed v. Jones, 421 U.S. 519 (1975), the Court posited a functional equivalence between criminal trials and delinquency proceedings, and held that the constitutional ban on double jeopardy precluded adult criminal reprosecution of a youth following a delinquency adjudication.

In McKeiver v. Pennsylvania, 403 U.S. 528 (1971), however, the Court denied to juveniles the constitutional right to a jury trial and halted the extension of full procedural parity with adult criminal prosecutions. In contrast with its analyses in earlier decisions, the McKeiver Court reasoned that "fundamental fairness" in delinquency proceedings required only "accurate fact-finding," a requirement that a juvenile court judge acting alone could satisfy as well as a jury. Unlike Gault and Winship, which recognized that procedural safeguards protect against governmental oppression, the Court in McKeiver denied that delinquents required such protection and instead invoked the stereotype of the sympathetic, paternalistic juvenile court judge. Unfortunately, McKeiver did not analyze or elaborate upon the differences between treatment as a juvenile and punishment as an adult that warranted the procedural differences between the two systems.

Together, Gault, Winship, and McKeiver precipitated a procedural and substantive revolution in the juvenile court system that unintentionally but inevitably transformed its original Progressive conception. By emphasizing criminal procedural regularity in the determination of delinquency, the Supreme Court shifted the focus of juvenile courts from paternalistic assessments of a youth's "real needs" to proof of commission of criminal acts. By formalizing the connection between criminal conduct and coercive intervention, the Court made explicit a relationship previously implicit and unacknowledged. Providing delinquents with even a modicum of procedural justice in juvenile courts also legitimated greater punitiveness. Thus, Gault 's procedural reforms provided the impetus for the substantive convergence between juvenile and criminal courts, so that for most purposes, contemporary juvenile courts function as a scaled-down extension of the criminal justice system. It is an historical irony that race provided the initial impetus for the Supreme Court to expand procedural rights to protect minority youths' liberty interests, and now juvenile courts' increasingly punitive sanctions fall disproportionately heavily on minority offenders.

The Gault decision represents a procedural revolution that failed and that produced unintended negative consequences. Delinquents continue to receive the "worst of both worlds"—neither the solicitous care and regenerative treatment promised to children nor the criminal procedural rights of adults. McKeiver denied delinquents criminal procedural equality with adults, but the Court could not compel states to deliver social welfare services. Although youths lack procedural parity with adult defendants, providing delinquents with any procedural safeguards at all legitimated more punitive sanctions. Once states grant a semblance of procedural justice, however inadequate, it becomes easier for them to depart from a purely "rehabilitative" model of juvenile justice.

Juvenile courts' increased procedural formality in the decades since Gault also provided the impetus to adopt substantive "criminological triage" policies. The "triage" process entails deinstitutionalizing and diverting noncriminal status offenders out of the juvenile system at the "soft" end of the court's clientele, waiving serious offenders into the criminal justice system for prosecution as adult at the "hard" end, and punishing more severely the residual, middle-range of ordinary criminal-delinquent offenders. Recent "get-tough" waiver and sentencing policies reflect juvenile courts' broader jurisprudential changes from rehabilitation to retribution. The overarching themes of these legal and operational changes include a shift from individualized justice to just deserts, from offender to offense, from "amenability to treatment" to public safety, and a cultural and legal reconceptualization of youth from innocent and immature delinquents into responsible and autonomous offenders. The substantive and procedural convergence between juvenile and criminal courts eliminates many of the conceptual and operational differences in strategies of social control for youths and adults. With the juvenile court's transformation from an informal rehabilitative agency into a scaled-down criminal court, some question the need for a separate justice system for young offenders whose only distinction is its persisting deficiencies.

Barry C. Field

See also Age and Crime; Contributing to the Delinquency of Minors; Excuse: Infancy; Juvenile and Youth Gangs; Juvenile Justice: Community Treatment; Juvenile Justice: Institutions; Juvenile Justice: Juvenile Court; Juveniles in the Adult System; Juvenile Status Offenders; Juvenile Violent Offenders.

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CASES

Breed v. Jones, 421 U.S. 519 (1975).

Ex parte Crouse, 4 Whart. p (Pa. 1838).

In re Gault, 387 U.S. 1 (1967).

In re Winship, 397 U.S. 358 (1970).

McKeiver v. Pennsylvania, 403 U.S. 528 (1971).