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June 01, 2017 HUMAN RIGHTS

Through Rose-Colored Glasses: The Twenty-First Century Juvenile Court

By Stephen J. Wermiel

A curious thing happened as we turned the corner to the twenty-first century: The juvenile justice system began to pivot to its founding principles that children who commit crimes should be treated differently from adults, a principle first articulated more than a century ago with the establishment of the first juvenile court in Cook County, Illinois, in 1899, but which largely vanished from the juvenile justice landscape with the rise in violent crime in the late 1980s and early 1990s.

Between then and now, America has traveled a circuitous route, veering from a focus on protection and rehabilitation to punishment and accountability, and then back again to an emphasis on the differences, rather than similarities, between juvenile and adult offenders. This route is also dotted with landmark rulings from the U.S. Supreme Court that have set constitutional parameters for what happens both inside and outside the juvenile courtroom. A quick trip backward: A century ago, every state in the country was passing legislation to establish a separate a juvenile justice system. The hallmarks of this separate system included privacy and confidentiality to protect children from public disclosure of their criminal offending and a procedural informality that lacked the most basic features of due process, such as a right to counsel, notice, protection against self-incrimination, or the right to confront witnesses. Literally operating behind closed doors, the juvenile justice system and its actual treatment of children was obscured from public view, until the 1960s when a series of cases reached the U.S. Supreme Court that cast a bright but ill light on this secret system.

Rehabilitation and treatment, it turned out, often took the form of years of incarceration in prison-like settings for trivial offending. Such punitive confinement was imposed without even rudimentary due process. Children could be transferred to criminal court for prosecution with no evidentiary record supporting their removal from juvenile court. And a civil standard of proof governed the determination of delinquency, despite the dire consequences many youth faced once adjudicated. Confronted with these scenarios, the Supreme Court made the remarkable observation that children are people too, entitled to various constitutional protections before their liberty could be stripped from them. In Kent v. United States (1966), the Court recognized a right to timely and meaningful notice, effective assistance of counsel and to a reviewable statement of reasons before a child could be transferred from juvenile to criminal court for prosecution.

In In re Gault (1967), the Court held that children have a right to court-appointed counsel in delinquency proceedings, as well as a right to timely and complete notice of charges, the right to confront and cross-examine witnesses, and to the constitutional right against self-incrimination. In re Winship (1969) required that the state prove delinquency charges on proof beyond a reasonable doubt, and Breed v. Jones (1975) extended the protections of the double jeopardy clause to children in delinquency proceedings. While these constitutional safeguards appeared to remake the juvenile court, at least with respect to how it adjudicated the youth it sanctioned, the rehabilitative goals of the juvenile justice system remained essentially intact. But in the late 1980s, the country witnessed a substantial rise in violent crime among juveniles and adults alike. This crime surge led to the now infamous but subsequently renounced declaration that we were facing a generation of teen “super-predators” who would place all of our communities at risk. “Adult time for adult crime” became a rallying cry for legislators, who nationwide scrambled to change existing laws to push ever greater numbers of children into the criminal justice system. By the time the crime wave abated in the mid-1990s, the damage was done; every state had overhauled their juvenile justice system by shrinking its boundaries and upping the punishment for juvenile offending. But our careening toward an ever-harsher punitive response to juvenile offending crashed into a wall of research at the beginning of this century, produced by the MacArthur Foundation’s Research Network on Adolescent Development and Juvenile Justice, which linked the psychological and neurological developmental differences between juveniles and adults to related differences in criminal culpability. The research identified key attributes of adolescents that make them less blameworthy for their criminal conduct. “Adult time for adult crime”—which blurred and nearly eviscerated those differences—suddenly seemed a bankrupt theory of public policy that was far out of step with scientific reality.

In the wake of this research, and 50 years after the first wave of Supreme Court cases addressed the due process rights of children, the Supreme Court was confronted with a new series of constitutional challenges—this time to sentencing and other criminal justice practices that failed to take account of these distinctions between children and adults. Once again, the U.S. Supreme Court responded favorably to these challenges, striking the juvenile death penalty in Roper v. Simmons (2005); life without parole sentences for juveniles convicted of non-homicide offenses in Graham v. Florida (2010); requiring law enforcement to consider the youthfulness of the suspect in the Miranda custody determination (J.D.B. v. North Carolina, 2011); and banning mandatory life without parole sentences for juveniles convicted of homicide (Miller v. Alabama, 2012).

Today, “kids are different” has replaced “adult time for adult crime” as the rallying cry for policymakers. Legislatures are reconsidering the harsh transfer laws passed in the 1990s, sentencing statutes are being amended in conformity with the Supreme Court’s rulings, and the juvenile justice system is re-emerging as the most appropriate arena to adjudicate and sanction instances of juvenile offending. At the same time, new research debunks even the overuse of confinement in the juvenile justice system, the criminalization of adolescence by focusing on normative adolescent behaviors as a basis for court intervention, and the overused school-to-prison pipeline that has thrown tens of thousands of kids off track in the midst of their most crucial middle and high school years.

Have we come full circle? Probably not quite. The United States remains a highly punitive culture that emphasizes retribution over rehabilitation in response to criminal misconduct. But there is a growing sense of compassion for youthful offenders, whose misconduct is often borne of a complex mix of developmental immaturity and ravaged or dysfunctional home environments. With crime at consistently low levels for the last two decades and heightened awareness of endemic over-incarceration with particularly pernicious racial disparities, there does appear to be a renewed commitment to addressing youthful offending in a separate juvenile justice system—as much as possible. Hopefully, the rose-colored tint remains, even once the glasses are removed.

Marsha Levick is the deputy director and chief counsel for Juvenile Law Center, a national public interest law firm for children in the justice and child welfare systems, which Levick cofounded in 1975. Juvenile Law Center undertakes litigation, appellate and amicus advocacy, and policy advocacy, working closely with state-based advocates across the country.