Juvenile Justice Articles



By Robert E. Shepherd, Jr.
Author's note: This column draws heavily from Barbara Flicker's "Introduction" to the upcoming single volume edition of the ABA-IJA Juvenile Justice Standards. Flicker was a director of the project that produced it and has been a guiding light in the Juvenile Justice Committee's re-examination of the Standards.

With all the turmoil swirling around the juvenile justice system today, from the halls of Congress to city councils and county commissioners, there is a dire need for a solid rock, an anchor in the storm. Under attack from many directions, there are some who argue that juvenile justice is too soft, a product of a long-gone era when youth crime was shoplifting and painting graffiti, and others who maintain that the system runs roughshod over the due process rights of its young charges. Both groups are essentially urging the same end, the abolition of the juvenile court as we know it--either through certifying its subjects to adult courts to be tried as criminals regardless of age or through narrowing the court's jurisdiction to abuse and neglect and dependency while shifting delinquency to adult court altogether. And these proposals are being made against a backdrop where politicians are demonizing youth by calling them "predators" or "young thugs."

Is there an anchor to hold the ship named juvenile justice steady in the storm? An increasing number of juveniles advocates are urging a renewed attention to the IJA-ABA Juvenile Justice Standards, a product of the late seventies and ABA House of Delegates action in 1979 and 1980.

The Juvenile Justice Standards Project was begun in 1971 at the Institute of Judicial Administration (IJA) located at the New York University School of Law. It began as a natural outgrowth of the ABA Standards for Criminal Justice Project, for which the IJA served as secretariat. The intention was to produce a single volume devoted to juvenile justice. Ten years and 23 volumes later, the IJA-ABA Juvenile Justice Standards were completed. They were developed by about 300 professionals from across the nation, including prominent representatives of every discipline connected to the juvenile justice system: law, medicine, social work, psychiatry, psychology, sociology, corrections, political science, law enforcement, education, and architecture, all supported by IJA professional and clerical staff.

A planning committee for the project, chaired by the late Chief Judge Irving R. Kaufman of the United States Court of Appeals for the Second Circuit, met in late 1971, followed by meetings of planning subcommittees to identify the issues in the juvenile justice field and the areas to be covered. In early 1973, the ABA became cosponsor of the project and the IJA-ABA Joint Commission on Juvenile Justice Standards was established as its governing body, chaired by Judge Kaufman. The commission consisted of 29 members, of which half were lawyers and judges.

Expert reporters were designated to work with drafting committees or work groups within the committees, and issues were identified that then were submitted to the commission for resolution. After the reporters' manuscripts were approved by the drafting committees, they were reviewed by the project staff and transmitted to the commission with pertinent comments on matters of consistency. The members of the commission independently reviewed the contents of each volume, followed by discussions of broad principles, as well as minute details of text. The volumes then were returned to the reporters with instructions for revisions. In 1975 and 1976 all 23 volumes were published as tentative drafts and distributed widely to a variety of individuals and organizations concerned with juvenile justice for their comments and suggestions. The ABA assigned the volumes to the appropriate sections, committees, and other entities specializing in the areas covered by each volume, with the task of coordinating the resulting recommendations handled by the Juvenile Justice Committee of the Section of Criminal Justice and its chair, Professor Livingston Hall of Harvard Law School, and the Juvenile Justice Standards Review Committee of the Section of Family Law, chaired by Marjorie Childs of San Francisco.

The comments and suggestions of the various individuals and groups, including the ABA entities, were submitted to the executive committee of the joint commission, which had been authorized to respond on behalf of the commission. It met to consider the proposed changes in the tentative drafts, made relatively minor changes, and the approved tentative drafts were sent to the ABA House of Delegates, accompanied by minutes describing the executive committee's decisions with respect to the revisions to be made in the volumes. The House of Delegates approved 17 volumes in 1979, and three more in August 1980. Of the remaining three volumes, Standards Relating to Schools and Education was withdrawn from consideration by the House of Delegates as too specialized; Standards Relating to Noncriminal Misbehavior volume was tabled by the delegates as too controversial; and Standards Relating to Abuse and Neglect was returned for revision. A revised volume on abuse and neglect was approved by the joint commission and published with the final revised drafts of all 23 IJA-ABA juvenile justice standards volumes in 1980.

In 1992, the Juvenile Justice Committee of the Section on Criminal Justice formed a subcommittee to review and revive the standards, and that subcommittee under the able leadership of Barbara Flicker, a key player in the development of the Standards, reported that they were still timely and singularly helpful. At the 1994 ABA Annual Meeting in New Orleans, the committee presented a Presidential Showcase Program on "Taking the ABA Juvenile Justice Standards to the 21st Century: Juvenile Justice Reform for the '90s." The audience was enthusiastic and plans were laid to publish a one-volume compilation of the standards with annotations to mark the body's intention to urge widespread implementation of the Standards. That volume is currently planned for publication in the spring of 1996 by the ABA Press.

During the 10-year period in which the Juvenile Justice Standards Project of the Institute of Judicial Administration (IJA) and the American Bar Association (ABA) was engaged in producing the 23 volumes of the IJA-ABA Juvenile Justice Standards, the project was governed by several well-articulated policies and guidelines. The most fundamental working principle was that the standards were designed to establish the best possible juvenile justice system for our society, not to vacillate in response to transitory headlines or controversies. As the joint commission began its work, a pattern of integrated concepts emerged and a value system that permeated all of the Standards became apparent. As Judge Patricia Wald of the District of Columbia Court of Appeals and a member of the joint commission has observed, "the unifying thread to all 23 volumes was that we--the adult world--had the right to judge, and to punish youthful wrongdoers, but we, too, had responsibilities for adjudicating children fairly; for intervening in families in ways that would be salutary, not punitive and destructive; and for treating youths who must be removed from society in a manner which did not derogate their humanity and guarantee them a pass to the nearest penitentiary."

From that initial premise, several fundamental principles flowed with logical precision, as follows:

1. Sanctions should be proportionate to the seriousness of the offense.
2. Sentences or dispositions should be fixed or determinate as declared by the court after a hearing, not indeterminate as determined by correctional authorities based on subsequent behavior or administrative convenience.
3. The least restrictive alternative to accomplish the purpose of the intervention should be the choice of decision makers at every stage, with written reasons for finding less drastic remedies inadequate required of every official decision maker.
4. Noncriminal misbehavior (status offenses or conduct that would not be a crime if committed by an adult) should be removed from juvenile court jurisdiction.
5. Limitations should be imposed on detention, treatment, or other intervention prior to adjudication and disposition.
6. Visibility and accountability of decision making should replace closed proceedings and unrestrained official discretion.
7. Juveniles should have the right to decide on actions affecting their lives and freedom, unless they are found incapable of making reasoned decisions.
8. Parental roles in juvenile proceedings should be redefined with particular attention to possible conflicts between the interests of parent and child.
9. There should be a right to counsel for all affected interests at all crucial stages of proceedings and an unwaivable right to counsel for juveniles.
10. Strict criteria should be established for waiver of juvenile court jurisdiction to regulate the transfer of juveniles to adult criminal court.

The project also relied on the basic concept that a family court was the centerpiece of an idealized juvenile justice system. Organized as a separate division of the court of original trial jurisdiction, the family court would be uniquely equipped to implement the standards. It would be expected to deal effectively with all but the most egregious cases and even then to retain jurisdiction until every reasonable effort had failed and the criminal justice system could be shown to be more effective.

Even a casual reading of the Standards shows the extraordinary interconnection and logical consistency throughout. Unfortunately, a major barrier to implementation has been the unwillingness of any jurisdiction to adopt the Standards as a whole. In those states where some of the Standards have been incorporated into the juvenile codes, the absence of essential support from related standards has limited the effectiveness of those adopted. For example, without voluntary community-based services, removal of status offenders from the court's jurisdiction creates many problems without solutions. Without a nonwaivable right to the assistance of counsel, a juvenile should not be expected to make an informed waiver of that or other rights. Alaire Bretz Reiffel, a former project director for the ABA's Juvenile Justice Standards Implementation Project, pointed to important roles for the Standards in a volume entitled the Juvenile Justice Standards Handbook. She identified those various actors in the juvenile justice system who could profit from the use of the Standards:

  • Trial judges, who can use them as guidelines in making individual case decisions, or in carrying out the significant number of administrative duties in the juvenile or family court;
  • Appellate judges, for whom the Standards may be an authoritative source for defining due process or delineating good practice;
  • Defense attorneys or public defenders, who might refer to the Standards for help in defining their roles, or in carrying out particular tasks in the representation of a juvenile or other private party in the court, or in arguing for a specific ruling on a contested point, or in drafting briefs on appeal;
  • Prosecutors, largely absent during the first two-thirds of the court's century of life, but who have achieved greater prominence in recent years, and who may need guidance in performing this new role or in equitably exercising their vast discretion;
  • Court or correctional agency administrators, individuals who can use guidance in carrying out difficult tasks and a variety of roles in a period when there are new and greater demands but less resources;
  • Teachers, for whom the Standards may provide a general guide for teaching about the juvenile justice system based on a national model, instead of simply on a state or local basis;
  • Legislators and other policy makers, who can use the Standards as a caliper for judging legislative proposals or administrative directives, regulations, or policies in an objective fashion;
  • The news media, who should refer to the Standards as an authoritative reference source for understanding current issues.

The Standards today can still serve as that critical anchor for the juvenile justice system in the midst of a swirling storm of political rhetoric, sensational media attention, and ill-informed public opinion. They were fashioned in an environment of objectivity and with a focus on developing a model for juvenile justice that was both idealistic and pragmatic. Some of the best experts in the field were a part of the project, and the ultimate product is as valuable today as it was in 1979 and 1980 when the House of Delegates gave it its endorsement. As Judge Wald has observed, "The IJA-ABA Standards still represent the most comprehensive, balanced vision of a just and potentially effective system for dealing with youthful offenders that exists." The Section's sponsorship of the single-volume compendium of Standards will undoubtedly lead to greater access to and dependence on the statements, and, hopefully a stronger and more effective juvenile justice system that protects the community and rehabilitates juveniles.

Robert E. Shepherd, Jr. is professor of law at the University of Richmond Law School.

Copyright 1996 American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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