Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1

The Special Issues of Juvenile Justice: An Introduction

By Wallace J. Mlyniec

One-hundred years ago, the State of Illinois established the first juvenile court, one of the great landmarks of social legislation of the last century. The original juvenile court was based on the notion that children were different from adults; that rehabilitation was possible and more important than punishment; that most children were redeemable; and that judges, making individualized decisions about children, could best determine whether the juvenile or adult court was the appropriate forum to prosecute a case. Within a few years after its implementation in Chicago, specialized juvenile courts existed in every state in the United States and throughout Western Europe.

During the last 10 years, state and federal legislators have begun to abandon those principles. Public perceptions about crime, political rhetoric, and an unprecedented increase in news coverage about crimes committed by children are largely responsible for this change in policy. Despite declining crime rates, the small number of children committing violent offenses, and the obvious dangers to children from adult processing, more than 40 states have toughened the sanctions children face in juvenile court and made it easier for prosecutors to bring charges against children in the adult court. Indeed, many policymakers and academics have called for either the abolition of the juvenile court or major changes in the way it does business.

As we enter the 21st century, and the second century of the juvenile court's existence, judges, lawyers, legislators, corrections personnel, and the American people must rationally confront the critical issue of how we treat children who commit crime. Today, children as young as 10 may be charged as adults. The question we as a society must ask is whether we will treat youth crime in terms of the offense and impose proportionate sanctions, or in terms of the offender and provide programs and services that may punish, but which are essentially directed towards reforming the offender.

The American Bar Association has long supported the traditional juvenile court. Its Juvenile Justice Standards, promulgated in 1981 after 10 years of consideration, set forth procedures that sought to bring due process to the juvenile court while preserving the traditions of rehabilitation, individualized treatment, and judicial determinations concerning transfer decisions. Now, nearly 20 years later, Criminal Justice magazine takes another look at the current state of youth crime and the juvenile court. In the articles that follow, written by judges, lawyers, and researchers, the authors seek to set forth a manifesto for the future.

Jeffrey Butts, in "Can We Do Without Juvenile Justice?" asks whether a separate juvenile justice system is still feasible. Considering the arguments for and against the abolition of the court, he notes the universally accepted fact that modern day juvenile courts have grown increasingly indistinguishable from adult courts. Further, he describes the various procedures enacted by legislators to impose crime-based rather than individual-based sanctions upon young offenders. Lost in the debate, according to Butts, are the significant costs borne by American youth as a result of current practices. First, the juvenile court no longer delivers on the promise of rehabilitation and low stigma for those processed in the traditional juvenile justice system. Second, current policies permit courts, corrections, and other agencies to ignore the inherent youthfulness of those defined as adults. Reflecting on these anomalies, he challenges hardliners and youth advocates to worry less about the structure of traditional systems and focus instead on an integrated youth justice system.

Judge Arthur Burnett, Sr., in "What of the Future? Envisioning anEffective Juvenile Court" reminds the same legislators whom Butts challenges that only 9 percent of arrested juveniles are charged with serious crimes, and warns of the folly that results when policy for the many is based on the experience of the few. For Burnett, the proper policy is found in fulfilling the dreams of the juvenile court founders, i.e., individualized sentences geared toward rehabilitation with judges rather than prosecutors or legislators deciding which children to abandon to the adult system. He envisions a revitalized and reincarnated juvenile court, with an array of programs to support children and families. While calling for more resources, better judges, and highly trained lawyers and service personnel who make comprehensive, multidisciplinary, and culturally sensitive investigations, Burnett recognizes that some children will be too much for the traditional system. For these children he recommends graduated sanctions and blended sentences in the juvenile court or waiver to the adult court after a complete investigation by the juvenile court judge.

The juvenile court today, however, falls short of Burnett's vision. In "Responding to the Crisis in Indigent Juvenile Defense," Patricia Puritz and Wendy Shang of the ABA Juvenile Justice Center in Washington, D.C., examine the problems relating to a child's access to counsel and to the quality of the representation a child receives. The article moves beyond a description of the dimensions of the crisis, and focuses on innovative programs that respond to the shortcomings in the representation of children, and sets forth a blueprint for reforming the scope and the nature of juvenile defense advocacy.

One of the highlights of the article is the introduction of the National Juvenile Defender Training, Technical Assistance, and Resource Center, funded by the Department of Justice and private foundations, which is housed within the ABA Juvenile Justice Center. While other key players of the juvenile court have long had the opportunity for networking, training, technical assistance and capacity-building activities, juvenile defenders have not had such support. The new National Juvenile Defender Center fills this critical void for juvenile defenders and is one step towards fulfilling Judge Burnett's vision.

Stacey Gurian-Sherman describes shortcomings beyond the role of counsel. In "Back to the Future: Returning Treatment to Juvenile Justice," she echoes the call for reform but describes the stark realities of current juvenile detention systems and the trauma that children suffer when they are placed there. While focusing on conditions in the State of Maryland, her story reflects a national scandal. The absence of adequate mental health, medical, substance abuse, and educational services in detention facilities are compounded by inappropriate discipline, lack of supervision, and the existence of verbal, physical, and sexual assaults. Disproportionate minority confinement and prolonged and unreasonable periods of detention are also standard features of many current detention facilities.

Gurian-Sherman's call for reform is not new, but is worth repeating. She writes about the need to improve mental health screening and services; to create alternatives to detention; to improve all other services in detention centers; and to expedite special placement orders. If policymakers do not make these improvements, she believes that Judge Burnett's revitalized juvenile court will never exist.

If a revitalized juvenile system develops, prevention will be as important as treatment. Edgar Cahn, in "The Time Dollar Youth Court," describes one of the innovative alternatives that Judge Burnett and Gurian-Sherman seek. Cahn, a long-time public interest innovator, sought a way to impact the lives of first and minor offenders whose cases were often given a low priority in busy urban prosecutors' offices. These children often avoided any systematic intervention and, thus, society lost the opportunity to have an impact on their lives. Cahn sought a safe harbor where a child from the street could say to another, "You were stupid. You knew when you got into that Mercedes that it couldn't belong to your friend."

The forum Cahn created in the District of Columbia was a teen court, but he added to it the time dollar concept as a way of helping children and building community. This innovative system awards children one time dollar for every hour that they spend working with the teen court. The time dollars can then be used to purchase such things as recycled computers. The article describes the working of the Time Dollar Youth Court and tells the stories of those children who come before it. Cahn's court hears over 350 cases a year in locations dispersed throughout the community. Its goal is to focus on children's assets, not their deficiencies, and to build on their strengths. Cahn believes the success of such programs could serve to reduce the number of children entering the formal juvenile justice system.

Notwithstanding the call these authors make for a revitalized juvenile court, state legislators are rejecting the court's founding principles. Since 1993, 43 states have made it easier for prosecutors to send children to the adult court without judicial involvement. Vincent Schiraldi and Jason Ziedenberg's article, "The Florida Experiment," looks at the results of these get-tough policies. Florida sends as many children to the adult court as the rest of the nation combined, so it provides a good laboratory to study the effects of such policies.

Schiraldi's and Ziedenberg's conclusions will not encourage those who believe harsh penalties reduce crime. Using almost any measure, they find that the system of prosecutorial waiver fails to prevent crime, harms children, and turns nonviolent offenders, the bulk of those transferred pursuant to the Florida laws, into more frequent and more violent offenders. Reading their finding one can only make one wonder why such laws remain popular. Moreover, the ease with which children can be moved into the adult court hides the difficulties that arise once the children are there.

Malcolm Young, in "Representing a Child," describes the enormity of the task encountered by lawyers who defend children charged with first-degree murder in the adult court. He describes the case of Latisha Armstead, a 13-year-old girl, who was present and more when her boyfriend strangled her grandmother's care provider. Young describes how, at every critical point of the adult criminal process, children are ill-equipped to defend themselves or be defended even by competent and conscientious counsel.

In a step-by-step analysis, Young details the difficulties that young clients and counsel face when defending against serious charges in the adult court. From the commission of the crime itself, through the arrest and pretrial stages, then finally the trial and sentencing, prosecuting children as adults is, in Young's words, "like shooting ducks in a penny arcade." Children are no match for the adults. Moreover, judges, juries, and correctional personnel often do not know how to balance the youth of the offender with the seriousness of the crime when doing their jobs.

The issues confronting society regarding crimes committed by youth are serious and complex and take an enormous toll on victims, perpetrators, and the professionals engaged in this work. For 100 years, juvenile courts have served the nation. Like all institutions, the court has had its successes and failures. But 100 has not changed the essential fact that no matter what crime is committed, children and adolescents are not adults. They do not think like adults and they do not function like them. Although the suggestions provided in this series of articles may not resolve all of the issues or satisfy all of the experts, we hope you find them provocative and that they re-energize serious discussion rather than demagoguery about the issues. n

Wallace J. Mlyniec is the Lupo-Ricco Professor of Clinical Legal Studies and associate dean for Clinical Education and Public Service Programs at Georgetown University Law Center, the largest in-house clinical program in the country. He is also responsible for various institutes related to GULC and has administrative oversight for the Continuing Legal Education program. Additionally, he guides the activities of all of the noncredit public interest and community service organizations at the Law Center. Mlyniec is also the director of the Juvenile Justice Clinic at Georgetown. Founded in 1973, it was one of the first law school-based legal clinics specializing in children's issues. It seeks to expand the legal rights of children, and to ensure that children are protected from maltreatment by their parents or by the government. Mlyniec is the author of several books and many articles on children's rights, family law, and criminal justice, including Juvenile Law and Practice in the District of Columbia. He also wrote parts of the District of Columbia's Family Court statute and the D.C. Superior Court Juvenile Division rules. He has been a consultant to schools of social work, law schools, to the American Bar Association Center for Children's Rights, and to the National College of Juvenile and Family Court Judges and has received a Bicentennial Fellowship from the Swedish government to study comparative law regarding children's issues. Mlyniec has spoken on the topics of juvenile and criminal law throughout the nation and has litigated criminal, juvenile, and family law issues in the District of Columbia for almost 30 years. He is currently chair of the American Bar Association Committee on Juvenile Justice.