Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1


By Hon. Arthur L. Burnett, Sr.

It is not uncommon to hear that "our children are our future" and "it takes a whole village to raise a child," but society has a long way to go to substantively implement these concepts. As we enter the 21st century there must be a commitment to a stronger, reinvigorated, and more innovative juvenile court system. In the past decade, the emphasis has turned from rehabilitation and treatment to punishment, as state legislators pass statutes that remove juveniles from the jurisdiction of the juvenile court in order to treat many more of them as adults. In fact, the public perception of extremely violent youth is the based on the acts of a small number of juveniles with ready access to guns.(See Thomas F. Geraghty, Symposium on the Future of the Juvenile Court: Justice for Children: How Do we Get There? 88 J. CRIM. L. & CRIMINOLOGY 190 n.2 (citing Donna Lyons, Juvenile Crime and Justice: State Enactments, 1995, 20 St. Legis. Rep. 17 (1995) (50-state survey), 191, 199 (discussing the Illinois statutory change) (1997).) The age of transfer has been lowered in many jurisdictions, and a broader range of felonies can lead to adjudication as an adult. Fully 90 percent of all states have toughened their juvenile justice laws in recent years, and some states have no minimum age of transfer. (Thomas Grisso, Juvenile Competency to Stand Trial, 12 CRIM. JUST. 4, 5-6 (1997). But the conduct of the violent few should not govern the policies as to the role of juvenile courts in the 21st century. What legislators and executive officials should do is provide the juvenile courts with greater resources to deal effectively with children, revitalizing the courts in the context of contemporary society and giving them the capacity to achieve the purpose for which they were originally created. With such resources, juvenile judges and administrators must be more creative and effective in utilizing them to achieve the maximum results desired. Policymakers, such as legislators and executive branch officials, can no longer afford to treat the juvenile court as the stepchild in the overall court system. Some would argue that given the importance of reaching troubled youth in the most formative time in their lives, juvenile courts should be placed at the head of the line for sufficient financial funding and proper staffing with committed judges, social workers, psychologists, psychiatrists, and other personnel necessary to meet the demand. For many courts, the problem is finding appropriate programs in which to place troubled children. This is especially true for indigent youth. (For more on this topic, see the article Crisis in Indigent Juvenile Defense in this issue. Also see Thomas F. Geraghty, supra, 203-04.)

Choosing the court's mission

As we begin the 21st century, what should be the mission of the juvenile court? Should its role be limited only to cases involving the first-time, non-violent offender, who offers the optimum opportunity for success, where it can devote more of its resources and energies to prevent recidivism? Is this approach too limited? Or should the juvenile court have an expansive jurisdiction that includes repeaters and those charged with violent offenses, giving discretion to judges to determine, based on an adequate factual record after a due process hearing, when a juvenile warrants waiver to adult criminal court because he or she can no longer be handled in the juvenile court system? Instead, for the child in the margins, where the judgment call may be difficult, why not try the "blended sentencing" approach enacted into laws in New Mexico and Minnesota. Blended sentencing, which permits juvenile court judges to impose juvenile and adult sentences at the same time, is designed to reduce reliance upon automatic and discretionary transfer, allowing the "transfer" decision to be made after a child's experience with juvenile court interventions can be evaluated. The effect of a latent adult sentence provides a powerful incentive for the juvenile to respond to services provided by the juvenile court and protects society if the child does not respond in a positive manner. Blended sentencing schemes impose substantial punishment, provide incentives for rehabilitation, and where rehabilitation works, eliminate the economic and social costs of long-term incarceration in adult prisons. (Geraghty, supra, at 191.) In this connection, note that in 1996 only 9 percent of the juveniles charged were for the violent offenses of criminal homicide, forcible rape, robbery, and aggravated assault. Half of those charged were for property offenses. Some 10 percent of the juvenile arrests were for drug law violations, and 19 percent were for public order offenses.(OJJDP, Juvenile Offenders and Victims: 1999 National Report, at 144.) Juvenile justice policy affecting 100 percent of the American youth should not be predicated upon the alleged violence of 9 percent or less of those arrested. Policy must be guided by consideration for the greatest good for the greatest number of youth while remembering that each child is important as an individual. It is essential that the first time a youngster is brought before the juvenile court, the maximum resources necessary be made available to change his or her attitudes and values so that child does not become a repeater in the juvenile justice system and, ultimately, an adult criminal offender. From this perspective, it is more important that legislators and the executive branch spend more resources on the juvenile court to ensure its maximum efficiency and provision of services than on the adult criminal court. If the juvenile justice system is to be saved from becoming the "farm system" for adult criminal offenders, we must focus more of our resources and attention on early and effective intervention during a child's first contact with the juvenile courts. If successful, this could significantly reduce the number of adult criminal cases in the future. We must start with the quality of the judges and judicial officers serving in our juvenile courts. They must have not only a knowledge of the law applicable to juvenile delinquency cases, but they must recognize one of the fundamental truths upon which the juvenile court is based: Children, by virtue of their age and inexperience, require special protections under the law. They must fully understand and appreciate the stages of child development, the educational needs of children at various stages in their development, and child behavioral issues. (See Elizabeth S. Scott and Thomas Grisso, Symposium on The Future of the Juvenile Court: the Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137 (1997).) To that purpose, the juvenile court judge and judicial officer must be sufficiently immersed and gain a depth of understanding that equals the substantive knowledge expected of social workers and psychologists who deal with children and their behaviors. They should receive specialized training, which is comprehensive and multidisciplinary. They must also become culturally sensitive so as to appropriately evaluate each child who comes before the juvenile court on the basis of his or her own character and individual value system, without being influenced by stereotypes and assumptions based on race, national origin, and poverty circumstances. This also applies to social workers, psychiatrists, psychologists, probation officers, and others in order to make accurate risk assessments in evaluating each individual child. This is necessary so that the recommendations they make to the judge or judicial officer will reflect the true inner core of that child. Such recommendations then provide the basis for an intelligent decision as to what services will assist that child to become a positive functional youngster who will not offend again. Judges and their staff, with community support, should design and implement effective alternatives to detention that will achieve this objective while keeping the youngster in the community. When a youngster fails to conform to conditions of probation or release in the community, there should be meaningful, graduated sanctions appropriate to the conduct. Detention should be the ultimate sanction when necessary to protect the safety of others and the community. Judges and judicial officers should have a sufficient commitment and dedication to serve in the juvenile court for at least two years to acquire the needed knowledge and expertise. In this manner, the juvenile court can become a highly functioning special court for children-the Children's Court-which can accomplish its mission, provided legislators give it the highest priority along with adequate financial and human resources.

Intake screening process

A progressive juvenile court must have an effective intake screening process to evaluate the risk and behavior factors of each child brought before the court. For instance, when the youngster is a first offender for a property offense, a minor assault, or a minor drug offense, an adult from a faith-based organization might come forward to serve as a mentor to that child and as a helper to the parent. The trial on the juvenile petition or complaint could be stayed or deferred for a period of four to six months to determine if the child will improve under the watchful eye of a concerned mentor operating much like a favorite uncle or aunt. If at the end of the deferred prosecution period the child is well adjusted in school and has made positive adjustments in the community, the prosecutor could then drop the charge without jeopardizing the safety of the community or worrying about whether the child felt he or she had merely received a "slap on the wrist" with no appreciable consequences. Indeed, during this period, 25 or more hours of community service could be required of the youngster-a giving back to the community. In this manner, these mentors could become like Thomas Calhoun Walker of Virginia who served as the "children's lawyer" for African American youth in Virginia in the first half of the last century. According to juvenile justice scholar Professor Robert E. Shepherd of the University of Richmond's T.C. Williams School of Law, Walker persuaded local judges to bond boys who had been jailed into his custody. He would then place them among families of his acquaintance or take them home to his wife. Many of these youths were adopted by these families and went on to college or into a trade without further difficulties. (Juvenile Justice 14(2) CRIM. JUST., (Summer 1999) at 45.) The utilization of church-based or faith-based mentors who are truly committed and dedicated could greatly increase the number of juveniles who correct their ways and become responsible and productive adult citizens in our communities. The only requirement, in order to maintain the church/state separation, is that the court make clear that religious instruction or church attendance must not be required of the child in order to participate in such a program.

Teen courts

Another alternative available to the juvenile court is the use of "teen courts," also known as "youth courts." In the past decade they have become a popular intervention for young and first-time offenders. The number of teen courts nationwide grew from an estimated 50 programs in 1991 to 400-500 programs in 1998. (OJJDP Fact Sheet, Oct. 1999, No. 118.) According to the Office of Juvenile Justice and Delinquency Prevention, survey findings indicated that teen courts nationwide handled approximately 65,000 cases in 1998. Most teen courts do not determine the guilt or innocence of juveniles, rather they serve as diversion alternatives. Although individuals must admit to the charges against them in order to qualify for teen court, no formal adjudication is made nor judgment entered. The types of offenses include theft, misdemeanor assault, disorderly conduct, and possession of alcohol. The most popular teen court model involves the use of an adult judge with juvenile "lawyers." These courts utilize youths in various roles, including prosecutors, defense counsel, and as members of juries that determine factual guilt or as advisory juries to fashion appropriate dispositions. Community service is the most common disposition used in teen court cases. Other dispositions include victim apology letters, apology essays, teen court jury duty, drug/alcohol classes, and monetary restitution. The proponents of such teen or youth courts hope to achieve reduced recidivism, increased pro-social attitudes, and improved perceptions of justice. (See the article "The Time Dollar Youth Court" on page 40.)

In November 1999, the District of Columbia Coalition Against Drugs and Violence voted to support the expansion of the youth court program and to use its influence and outreach efforts to involve more community collaborators in providing the services these youngsters need to ensure that they make a positive social adjustment and do not commit further juvenile offenses. In this way we can expand the availability of services to each individual youngster in a manner expressly designed to treat the problems and behaviors of that individual.

Many youngsters referred to the juvenile justice system are alcohol or drug dependent, or on their way to becoming such. More services need to be provided to the juvenile justice system for addressing these problems in an effective and meaningful fashion. In the Superior Court of the District of Columbia in 1999 a juvenile drug court was established as a 12-month substance abuse treatment program aimed at promoting abstinence and healthy living choices for juveniles and their families. This program is comprehensive in scope and is directed at the nonviolent substance abusing juvenile population. Treatment is designed using a strengths-based model that focuses on the individual's and the family's most positive characteristics. The program is intensive and includes structured supervision, regular court appearances, mandatory drug/alcohol testing, ongoing assessment, group and individual counseling, drug education, family counseling, education and support, recreational therapy, and a myriad of wraparound services designed to support healthy and responsible living. In developing these strengths, the juvenile and his or her family will be empowered to develop a drug-free lifestyle and accomplish goals for responsible living. Upon successful completion of the program, the judge has the authority and power to dismiss the charges that brought the juvenile before the court.

When cases go to trial

When pretrial diversion programs or other approaches do not result in the dismissal of the juvenile delinquency charges, the case must be tried. At this stage it is essential that the juvenile be represented by defense counsel as knowledgeable and competent as any lawyer who would represent a criminal accused in adult criminal court. Young lawyers right out of law school should not merely view juvenile court as a training ground to prepare them to represent adults in criminal court. Rather, they should view the role of defense counsel in juvenile court as being even more demanding than adult court because there are serious questions as to a child's ability and capacity to understand the proceedings and to assist counsel. (See Thomas Grisso, Juvenile Competency to Stand Trial, Questions in an Era of Punitive Reform, 12(3) CRIM. JUST., (Fall 1997) at 4-11.)

Counsel must also fully appreciate the implications of In re Gault, 387 U.S. 1 (1967) and its progeny and be fully competent to protect the constitutional due process rights of the juvenile in the trial process. (See Robert E. Shepard, Jr., The Juvenile Court at 100: Birthday Cake or Funeral Pyre, 14(2) CRIM. JUST., (Winter 1999) at 50; In re Winship, 397 U.S. 385 (1970).) Further, counsel in juvenile delinquency cases may make a far greater contribution by assisting in designing a disposition plan that may change a child's life, rerouting a juvenile's path from repeat offender to a productive and useful citizen, making significant contributions to the community in which he or she will live as an adult. Effective, committed, and knowledgeable lawyers for juveniles should come forward to advocate for each child at every stage of the proceeding.

It is also important that a substantial number of minority lawyers come forward to handle juvenile delinquency cases. (In August, the author urged by letter that the president of the National Bar Association, Harold D. Pope, use the prestige of that office to encourage young African American lawyers to participate in training programs to be offered by the American Bar Association's Juvenile Defender Center. The lawyers would spend two to three years representing clients in the juvenile court system.) With the disproportionate minority confinement statistics that now exist in this country, minority lawyers must accept the challenge of educating judges, psychologists, social workers, and others in the juvenile justice system on how better to assess and evaluate all minority youths-their inner values, mores, cultural and family traditions-so as to design effective rehabilitation programs in connection with proposed dispositions, which lead to probation and a change of attitudes and values that result in a child becoming a responsible, productive, and law abiding individual.

Effective representation requires counsel to meet the juvenile client immediately in order to understand what brings the child to court. Counsel should then gather critical information from the family, schools, and social service agencies and conduct at least a preliminary inquiry into the nature of the charges. This will enable the lawyer to present the client in the best light. If pretrial release is not obtained on the initial presentment, counsel should endeavor to obtain a review proceeding as to release, gather additional information, and make the best case possible for the release of the client to the community. Obtaining a strong potential mentor, setting up a program of regular school attendance that will be monitored, and an after-school program to ensure that the child is engaged in positive activities should be ingredients of any release plan. If there is indication of drug use, drug testing and counseling should enable counsel to obtain the release of the juvenile, unless the offense is an exceptionally violent one or the youth has a serious history of prior offenses. In this way, counsel can assist in reducing the disproportionate confinement of minority youth held in pretrial detention. Such an approach by defense counsel at the very beginning of the case is absolutely necessary to ensure that juveniles are not held in secure detention when they pose no significant danger to themselves or others. Once the juvenile has been released from pretrial detention, or if the child continues to be held, counsel should be just as diligent in the investigation of the case and preparation for trial as if it were an adult criminal trial.

Effective probation

If the charges against the juvenile are sustained, the juvenile will need continued representation to ensure that the disposition-sentencing-order is fair and appropriate. Putting a youngster on probation must be more than imposing conditions that tell the youngster "to go and sin no more." There must be more than the hortatory "thou shall not" with reference to engaging in future delinquent or criminal conduct. Effective probation programs for a youth must provide for giving the offender the required literacy skills and education necessary to function in society in the 21st century. Probation conditions should be established to achieve giving the probationer the basic life skills and the job training to be employable and self-sustaining once the probation period is successfully completed. Juvenile court judges should seek to tap all available community resources as options for meaningful probation conditions that will change values and really rehabilitate. Indeed, the juvenile court may seek to establish a collaborative working relationship with community groups that work with youths to give them positive direction and to provide the youth probationer with the wherewithal to change his or her life. Such an example is Project Soar, which ran from fall 1995 to summer 1997. Offenders in that program ran a pizza delivery restaurant, participated in after-school tutoring, and learned computer-base skills. This program was designed to create a special place for young offenders who were committed to leaving criminal behavior behind and working hard to improve their academic skills, gain employment experience, and enhance their own ability to make good decisions. In the spring of 1997 this program was expanded into a model comprehensive youth development program and renamed "See Forever," an innovative program integrating academics, the world of work, and life skills. "See Forever" opened its doors in September 1997 as a tuition-free, alternative school and real-world employment training program. In May 1998 the founders created an affiliate, a second student-based business, the "See Forever Student Tech Shop," at which students use their technical skills to produce technology/graphics design products and to teach parents and siblings computer skills. In the summer of 1998 the founders of these entities separately incorporated the school to establish it as a public charter school and named it "The Maya Angelou Public Charter School" as a sole member nonprofit subsidiary of "See Forever." The school held its first graduation in July 1999 and all three of its graduates entered college this past fall. During the past summer two of its graduates taught a six-week computer course to seven students participating in the Superior Court Juvenile Drug Court/Probation program in Washington, D.C. In September 1999, the school started with 52 students and opened its fourth "See Forever" residence. Thirteen students now live in small "homes" around the school, each staffed by a "See Forever" adult; it is also planning to open another girls' residence in the near future. Such a resource for referral of offenders placed on probation by juvenile court judges of the Superior Court of the District of Columbia could serve as a model for changing lives and achieving the optimum success with juvenile probationers.

Another example of an exciting resource for offenders in the Washington, D.C., court system is the ARCH program-Action to Rehabilitate Community Housing. Its YouthBuild Program was recently funded by a $650,000 grant from the U.S. Department of Housing and Urban Development. This program will provide vocational training and education to 40 District of Columbia youths, aged 16 to 24, who are under the control of the superior court. This pilot program will combine academic instruction, vocational training in construction, leadership development, community service, life and employability skills training, social services and job placement, and follow-up. This will be the first YouthBuild program in the country that will serve only adjudicated youth. It is contemplated that the average stay in the program will be nine to 14 months and that every effort will be made to place a youth who completes the program with an employer. This is a program with a real pragmatic promise of changing lives.

Another program with much realistic promise is the Urban Services Program, also operated by the Superior Court of the District of Columbia. This is a year-long intensive probation supervision program for nonviolent youthful offenders between the ages of 14 and 26. It is a special emphasis program, the purpose of which is to interrupt and reduce criminal activities by providing a highly structured, community-based, intensely supervised program conducted in three phases. The first stage is a residential boot camp to build structure and discipline in a probationer's life. During the first 30 days, emphasis is placed on physical conditioning, ropes course, drills, bonding, survival skills, nutrition, and therapeutic groups, focused on anger management, conflict resolution, value clarification, and goal setting. The second stage lasts six months during which time the emphasis is on life preparation. Probation officers are charged with developing an individualized treatment plan that addresses the needs of the offender based on an educational assessment, drug abuse assessment, and goals set by the offender during the first stage. Included in this intensive community supervision are electronic monitoring, home visits, twice weekly urine tests, referrals for employment readiness, job placements, GED preparation or school advocacy, therapeutic recreation, and other specific referrals deemed appropriate to assist the offender with becoming a productive law-abiding citizen. During the final phase, which runs five months, based on positive progress, office visits are reduced and probation officers continue to monitor the individual's compliance with the individualized treatment plans and probation conditions.

When, after adjudication, it becomes necessary for a juvenile court judge to decide on a disposition of probation or detention for a child, the judge should by statute be given the authority to fashion a probation program that is holistic in nature and that includes the entire family. Many youths before a juvenile court come from dysfunctional families where a multitude of legal, social, and economic issues are intertwined. Much delinquent behavior can be traced to the family dynamics. Judges should be authorized to order family members into counseling and treatment along with the juvenile. When the parent or guardian refuses to comply, the court by statute should have the authority to impose sanctions, including contempt. (See, e.g., D.C. Code § 16-2320(c)(3) (1997).)

There must be effective monitoring of compliance with even regular conditions of probation by the youth by the assigned probation officer or social worker. One such creative example is the school-based probation officer program in Pennsylvania. Truancy is frequently at the foundation of a child becoming a juvenile delinquent; by putting probation officers physically in the school they can monitor their probationers' school attendance and they can also meet with them, provide them counseling, and even tutor them in meeting their educational requirements. Pennsylvania has placed more than 150 probation officers in schools full-time. The probation officer's primary role is to provide the probationers who attend the school with daily intensive supervision. Further, this school-based model allows the probation officers to maintain close contact with the juveniles under their supervision, verify their attendance, and monitor their academic progress and general behavior.

When detention is needed

Not all youngsters who are adjudicated juvenile offenders are suitable candidates, however, for probation. We recognize that there must be due consideration given to factors of accountability and protection of individuals in the community. Indeed, in some circumstances involving youngsters who are incorrigible or so committed to engaging in antisocial and juvenile offenses, it may become necessary to detain them even in pretrial custody. Thus, juvenile court judges and judicial officers must develop the keen insight and judgment to identify those individual juveniles where detention is necessary for the protection of individuals in our communities and to achieve their rehabilitation to the extent possible. In such situations, concerns for accountability and punishment must also play a role in the disposition. Such detention must not be in adult facilities, to ensure that these children are not abused and harmed nor educated in the ways of becoming hardened criminals, but should rather be in separate juvenile detention facilities where their behaviors can be addressed and hopefully corrected. Of the highest priority is the development and utilization of risk assessment tools to determine who should be detained. These tools must be carefully designed and applied as not to sweep too broadly to include in the net for detention those youngsters who can be released into the community with suitable monitoring and supervision so as not to be a threat to the safety of any individual in the community.

Further, a prudent legislative policy should leave in the hands of experienced juvenile court judges the decision as to which juveniles should be prosecuted as adults. In some exceptional cases involving violent, habitual, and older offenders, public safety considerations may mandate handling that child in the adult criminal justice system. Such an approach continues our cherished tradition of permitting individualized justice based on the conduct involved in the incident and the personal history of the individual youngster. A juvenile should be dealt with through individualized justice considerations based on his or her own conduct and particular needs, rather than a process solely dictated by the offense. These considerations are ill-served when the prosecutor is given the authority to file charges directly against a juvenile at a specific age and the offense involves multiple offenders, some of whom are adults and others juveniles, but who may be prosecuted as adults solely because the prosecution wishes to try the case only one time and not to expose the government's witnesses to multiple cases in different courts. It is also frequently the case that it is not clear at the beginning whether a juvenile was merely present, and thus perhaps only a material witness, or whether the juvenile was an aider and abettor in the particular incident that is the subject of the criminal charges. Further, it appears that far more juveniles are prosecuted as adults in criminal court when a prosecutor is given the authority to file directly against a youth, and thus the net pulls far more youths into adult criminal court then may be in the interest of a sound criminal justice system or a sound juvenile justice system. With the benefit of specific knowledge and information about the offender and the offense, experienced juvenile court judges are best able to select the most serious, violent, and chronic juvenile offenders to be transferred after due process hearings in open court to an adult court for criminal prosecution. In all cases, it's important to remember that a 14-year-old sentenced to 10 years in adult prison for unarmed robbery in a purse snatching will return as a 24-year-old who has spent the formative years without affection or guidance and often the subject of prison abuse.

Furthermore, it has been suggested that judges serving on juvenile courts should not be isolated from the community in which they serve, merely sitting on the bench and going to and from home and otherwise leading a very private existence. Rather, they have a duty to reach out to the community and tap community resources on behalf of children. Further, they can urge the creation of community resources and programs for children. They can also talk to civic clubs and community organizations to obtain better services for children and youth. They can encourage broader opportunities and exposures for our youths through internships, work-study experiences, and community involvement. Such activities could help mold their values and attitudes in a way to decrease the likelihood that they will engage in conduct detrimental to their own advancement and achievement. Simultaneously, this improved behavior would promote the safety and protection of all citizens in the community. Such activities would advance the administration of justice, especially in our juvenile courts, and could well reduce the number of juvenile delinquency cases and criminal cases in adult court that would thereafter come into the court system.

In conclusion, a revitalized and reinvigorated juvenile court in this century, adequately financed by the legislature, and staffed with dedicated and committed judges and support staff, can significantly reverse the crime trends in America. However, no court system by itself can solve the delinquency or crime problem. The circumstances of poverty and other socioeconomic factors in our society, along with cultural and diversity issues and personality of individuals, will continue to have a significant role on delinquency and crime in the United States. But to the extent that sufficient funding and adequate human resources are made available to the juvenile courts, they can function effectively to achieve the mission of rehabilitating many juvenile offenders, reducing recidivism in those who come before the court, and, to a significant degree, reduce the number of individuals who go on to become adult criminal offenders. In this way, the juvenile courts of the future can make a significant contribution to improving the quality of lives of the individuals who come before them and to a significant degree improve the quality of life in the communities they serve, including some incremental increase in the protection and safety of the citizens living in those communities. n

Arthur L. Burnett, Sr., has served more than 12 years on the bench of the superior Court of the District of Columbia and is currently a senior judge. He was a U.S. magistrate judge with the U.S. district court for the District of Columbia for more than 14 years. He now serves as the Superior court's community relations liaison judge, generating community support for the creation of mentoring and other programs to reduce juvenile delinquency and prevent recidivism. He also works with many groups in the District of Columbia to improve the foster care system, the operation of the adoption programs, and the handling of neglect and abuse cases. He also serves as the "judge-in-residence" with the Black Community Crusade for Children at the Children's Defense Fund, promoting such programs and activities nationally in dealing with children in the juvenile delinquency, foster care, and adoption systems. In addition, he is senior cochair of the Criminal Justice magazine editorial board.