Broad Judicial Discretion Regarding Juvenile Delinquency With Focus on the Future of Juvenile Justice

¶ … Future Role of the Juvenile Justice System in the United States

Young people are naturally prone to experimentation and impulsive behaviors that frequently result in their involvement with the law enforcement community, and police officers today generally enjoy wide latitude in resolving these incidents. In fact, in some if not most cases, police officers can release young offenders into the custody of their parents or guardians without the further involvement of the criminal justice system. Even when young offenders are arrested, though, the juvenile justice system tends to afford them with more leniency than their adult counterparts, due in part to the view that the role of the juvenile justice system is to rehabilitate rather than punish. These enlightened views of juvenile justice, though, are being replaced with "get-tough-on-crime" approaches in some states, and there remains a paucity of standardized models for states to follow. To gain some fresh insights in these areas, this paper reviews the relevant peer-reviewed and scholarly literature concerning current and future trends in juvenile justice in the United States, followed by a summary of the research and important findings in the conclusion.

Review and Analysis

The view that young criminal offenders should be treated differently is not new. During the 20th century, this view became refined with respect to how young people, or more precisely juveniles, would be adjudicated within the larger American criminal justice system. In this regard, Black's Law Dictionary (1991) defines juveniles as "a young person who has not yet attained the age at which he or she should be treated as an adult for purposes of criminal law; in some states, this age is 17 years. Under the Federal Juvenile Delinquency Act, a 'juvenile' is a person who has not yet attained his 18th birthday" (p. 867). The term "minor" is specifically" distinguished from "juvenile" by this criminal justice system context. For instance, Black's adds that, "In law the terms juvenile and minor are usually used in different contexts; the former used when referring to young criminal offenders, and the latter to legal capacity or majority" (1991, p. 867).

During the early era of the juvenile justice system, youthful offenders were regarded as being so many "little adults" who were subjected to the same types of harsh punishments that were meted out to adult offenders (Pasko, 2010). According to Pasko, "By the late 1800s, increases in immigration, urbanization, and industrial jobs heightened poverty and subsequent societal concerns. Poor became synonymous with delinquent, as poor and neglected children often turned to criminal activity as a means of dealing with familial neglect and abandonment" (2010, p. 1099). Despite a lack of timely evaluations concerning the effectiveness of these approaches to adjudicating youthful offenders, empirical observations and increasing experience with the outcomes of these "little adult" approaches were deemed unsatisfactory over time. In this regard, Pasko notes that, "Because incarceration with adult offenders did not seem to deter youth from criminal behavior, reform schools -- Houses of Refuge-were founded. Their primary intent was to provide discipline and education to incorrigible youth who lacked desirable character -- to save these children from themselves and their surroundings" (2010, p. 1100). In reality, the Houses of Refuge and a separate juvenile justice system represented some of the changes that were taking place in larger American society during this period in history. According to Pasko, "The movement to create separate institutions for juvenile offenders was part of the larger Progressive movement that, among other things, was ardently troubled about social and moral evils, such as promiscuity and prostitution. Spearheaded by privileged women, the child savers' movement and the establishment of family courts provided an opportunity for these women to patrol the normative boundaries of the social order" (2010, p. 1100). These increased oversight even introduced some significant differences in the definitions that were applied to young male and female offenders. For instance, Pasko adds that, "Whereas the first juvenile court originally defined 'delinquent' as those under sixteen who had violated a city ordinance or law, when the definition was applied to girls, the court included incorrigibility, associations with immoral persons, vagrancy, frequent attendance at pool halls or saloons, other debauched conduct, and use of profane language in its definition" (2010, p. 1101). Notwithstanding these gender-based differences, the reform movement itself was intended to include all young offenders. According to Klein (1998), "Progressives in the late nineteenth century pushed for reform everywhere in the criminal justice system. The Progressives looked to move away from the punitive and toward a rehabilitative ideal, especially with regard to the correction of delinquent children and adolescents" (p. 373).

One group of Progressives known as the "child savers" concentrated their resources on identifying and addressing the causes of delinquent behavior among juveniles which demarked the point at which the juvenile justice system in the United States shifted from the "little adult" model to one that recognized the basic differences between youthful and adult offenders. In this regard, Klein notes that, "The child savers viewed juvenile offenders as a group in need of care and guidance, not punishment" (p. 373). The child savers promoted a juvenile justice system that could provide care for troubled youth who were without alternatives. For instance, according to Creeden, "The juvenile justice system was akin to a social agency, the parens patriae, or 'parent of the country' with power to watch over youth who incapable of protecting themselves" (p. 120). The goal of the juvenile justice system during the early part of the 20th century was to help young offenders rather than punish them. In the majority of cases, juvenile proceedings were not criminal trials but were rather informal hearings (Creeden, 2004). In sum, "Children were treated differently from adults who broke the law" (Creeden, 2004, p. 120).

The landmark case in American juvenile justice is In re: Gault, a case in which the Supreme Court examined the issue of whether a juvenile system which used informal hearings to adjudicate juvenile offenders was fundamentally constitutional. In the In re: Gault case, the Supreme Court held that "juvenile hearings were similar to adult criminal trials because the hearings might result in confinement. Therefore, an absence of constitutional guarantees deprived juveniles of a fair hearing" (Creeden, 2004, p. 120). In re Gault, Justice Fortas articulated the interests of these early reformers in changing the American juvenile justice system thusly:

The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. They were profoundly convinced that society's duty to the child could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was 'guilty' or 'innocent,' but 'What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career.' The child-essentially good, as they saw it -- was made 'to feel that he is the object of [the state's] care and solicitude,' not that he was under arrest or on trial. (quoted in Klein, 1998 at p. 373)

In its supporting rationale in re: Gault, the Court reasoned that the due process clause of the Fourteenth Amendment applies to juvenile proceedings and that juveniles are due these basic constitutional rights:

1. Notice of the charges. There must be written notice of the facts in time to prepare for the hearing.

2. Right to counsel. The child may hire an attorney or have one appointed.

3. Right to remain silent. The child does not have to testify and an involuntary confession cannot be used as evidence.

4. Right to confront witnesses. There must be sworn testimony to support a ruling and an opportunity to cross-examine the witnesses (Creeden, 2004, p. 121).

Although the foregoing are similarities with the adult criminal justice system, there remains some differences in how young offenders are adjudicated compared to adult offenders, and many find themselves treated as harsh or even more harshly compared to adult offenders by a juvenile justice system as a result. Until the latter half of the 20th century, the juvenile justice system was regarded as being more lenient on young offenders for a wide range of legitimate reasons, many of which remain applicable today. After all, young people do stupid things and some of them do them over and over until they learn their lessons. In this regard, Klein (1998) emphasizes that, "Historically, Americans have viewed juvenile delinquents as less culpable than adult offenders. Therefore, the juvenile justice system has theoretically focused on the care and rehabilitation of the child rather than on punishment and incapacitation" (p. 371).

In response to increased perceptions of youthful violent crime in general and gang-related activities in particular among the American public, lawmakers across the country revisited these alternative approaches for young offenders to determine if they remained relevant during this period in American history. According to Klein, "Over time, the focus of the juvenile justice system has gone from one of individualized treatment and rehabilitation to generalized concerns for public safety and accountability in juvenile offenders. This shift in focus is largely due to a popular view of a juvenile justice system that coddles the young offender" (1998, p. 372). Certainly, no lawmaker wants to be perceived as being "soft on crime," and if the general public perceives a threat from young offenders, then laws must be changed in response.

This "get-tough-on-juvenile-crime" movement came during a period when growing numbers of youthful offenders were becoming involved with the juvenile justice system each year. These trends were also occurring during a period when the juvenile justice system had fewer supports to work with, including community-based resources designed specifically for children and families (Brookins & Hirsch, 2004). According to Brookins and Hirsch, "During the last decade of the 20th century, juvenile violence spread like an epidemic among America's young people. Juvenile arrests for violent crime offenses increased 67% between 1986 and 1995" (p. 205).

Despite some progress during the late 1990s, there have still been some alarming statistics with respect to youthful violence in the United States. Guns in particular, appear to account for an inordinate amount of the crimes committed by juvenile offenders, with more than 4,200 young people under the age of 20 years being killed by a gun in 1997 alone (Brookins & Hirsch, 2004). In addition, there were some other alarming trends in juvenile crime, including an increased representation of female offenders which has increased at rates at least four times as high as their male counterparts (Brookins & Hirsch, 2004). More troubling still, the age of these youthful offenders has decreased compared to years past while the types of crimes they commit are more violent than before as well. For instance, Brookins and Hirsch (2004) note that, "In March 2000, the nation's youngest school killer emerged before us. A six-year-old boy shot and killed an age-mate girl after a fight they had on the playground the day before. Both children were put at risk by families who were in vulnerable situations" (p. 206).

The vulnerable situations qualifier is a reference to the inordinately high percentage of minority youths who become involved with the law enforcement community at some point. Irrespective of other factors, young people from lower socioeconomic families, especially inner-city minority families, are at higher risk of becoming involved with the criminal justice system simply because they are poor and Hispanic or black. For instance, according to Markowitz and Jones-Brown (2000), "Although the research on overrepresentation of minority youth in the juvenile justice system is inconclusive and subject to various interpretations, the broad picture that emerges is that the juvenile justice system acts in a discriminatory manner against minority youth" (p. 233).

The hip-hop culture that tolerates and even celebrates the so-called "gangsta" lifestyle has created a mindset among many youthful offenders today, black and white, that drug trafficking is a legitimate path to achieving the American dream when other alternatives are denied them (Aldridge, 2005). Indeed, nearly a third of African-American youths consider rap stars with criminal records for drug dealing and other criminal conduct as being appropriate role models worthy of emulation (Brown, 2005). Moreover, these images are becoming increasing pervasive throughout American society, but they are especially pronounced among African-American youth whose families may be comprised of high percentage of criminals (Boyd, 2002). For instance, according to Butler (2005), "Hip-hop takes punishment personally. Many people in the hip-hop nation have been locked up or have loved ones who have been. Punishment is an exercise of the state's police power, but it also implicates intimate family relationships" (p. 984). These observations suggest that crime and a criminal lifestyle are being glamorized in hip-hop culture, and run-ins with the juvenile justice system may be regarded as badges of honor and rites of passage rather than the beginning of a life of crime (Quinn, 2005).

While it is well established that minority youths are involved in more criminal behaviors in general and violent crimes in particular compared to their white counterparts (Brookins & Hirsch, 2004), Markowitz and Jones-Brown suggest that the process may be mutually reinforcing and self-sustaining. In this regard, Markowitz and Jones-Brown advise, "Of equal importance is the evidence that some minority youths are disproportionately involved in delinquency. In general, however, there appears to be stronger empirical evidence for discrimination than for the disproportionate involvement of minority youths in delinquency" (2000, p. 233). Once again, irrespective of the other factors involved, Markowitz and Jones-Brown (2000) conclude that, "The fact remains that minority youths are overrepresented in the juvenile justice system" (p. 233).

The juvenile justice system in this context represents a beast that churns up young people and turns them into seasoned, hardened adult criminal offenders, and the process is accelerating in ways that may doom an entire generation of American youth to a life of crime unless steps are taken today to address these trends. In this regard, Markowitz and Jones-Brown add that, "Unless there is a reversal of this, the system will continue to socialize minority youths. Once a minority enters the system, he or she becomes trapped in the mechanism of the system. When the minority youth develops a prior record, this becomes a liability in the future" (p. 234). Some authorities suggest that a basic reform of the juvenile justice system is required to address these disparities in the American juvenile justice system's adjudication of minority youths, including taking the steps outlined in Table 1 below.

Table 1

Steps to reducing racial discrimination in the American juvenile justice system

Step

Rationale

States should develop comprehensive, culturally sensitive training programs for all juvenile justice personnel

Too often, minority youths are subjected to the decisions, views, and perceptions of officials in the juvenile justice system that lack cultural understanding of minority youths.

States should increase the number of minorities employed at all levels of the juvenile justice system

Greater representation of minority personnel is needed in the critical decision-making processes in the juvenile justice system, so states need to employ more minority police officers, attorneys, and judges. The recruitment of minorities in juvenile justice agencies will not in itself ensure complete sensitivity to racial and ethnic differences, but this can create a better understanding of minority youths.

States should mandate that all agents of the juvenile justice system thoroughly monitor, evaluate, and review decisions for discrimination

From arrest to institutionalization, all stages of the juvenile justice system should be monitored. To accomplish this, the states should provide clear and specific guidelines as to the criteria on which decisions by juvenile justice personnel are to be based. Monitoring the system will be of enormous value to the individual agency concerned because each will be able to review its own policy and procedures. It will also allow assessment of the cumulative effects of decisions made by several agencies. Comprehensive monitoring will provide a better understanding of where discrimination and inequality are occurring in the system as a whole. This will provide a basis for determining where changes are needed and what the changes should be. A tracking system could be implemented to monitor the system.

States should establish procedures for reporting, recording, and investigating discrimination in the system

States need to establish reporting procedures, similar to those regarding sexual harassment, of professionals who engage in discrimination in the juvenile justice system. These procedures may allow for self- monitoring as well. Formal action should be taken against individuals found guilty of discrimination. These procedures will increase awareness and sensitivity about cultural bias.

Source: Adapted from Markowitz & Jones-Brown, 2000, pp. 233-234

Like ex-felons who find themselves at the mercy of employers that have hundreds of other applicants with no criminal records lined up for jobs today, young people who commit crimes may become inexorably and inextricably involved in the criminal justice systems in ways that defy easy solutions. For example, Markowitz and Jones-Brown (2000) point out that, "The presence of a prior record increases the likelihood that the minority youths will become entrenched in the system if they reoffend. Thus, the initial involvement in the system has a 'snowball' effect that can lead to later criminal behavior. For many minority youth, involvement in the juvenile justice system is the first step toward a criminal lifestyle" (p. 234). Rather than grooming young people to become better criminals when they become adults, Markowitz and Jones-Brown suggest that a more enlightened approach is needed to help prevent these young people from becoming involved with the juvenile justice system in the first place. According to Markowitz and Jones-Brown, "It is, therefore, imperative that the overrepresentation of minority youths in the juvenile justice system be prevented. There is no one solution, because this is a multiple and complex problem. However, the goals should be to reduce the racial and ethnic inequities in the system and to prevent minority youths from engaging in delinquency" (2000, p. 234).