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Juvenile Justice: History and Philosophy - The Progressive Juvenile Court

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Economic modernization at the end of the nineteenth century transformed America from a rural agrarian society into an urban industrial one. Industrialization rapidly displaced the household economy and separated work from the home. Industrial modernization encouraged migration from the rural countryside and immigration from foreign countries to urban manufacturing centers. These population changes weakened informal systems of social control based in extended families, communities, and churches. Immigrants from southern and eastern Europe flooded into the burgeoning cities to take advantage of new economic opportunities, and they crowded into ethnic enclaves and urban ghettoes. The "new" immigrants' sheer numbers, as well as their cultural, religious, and linguistic differences hindered their assimilation and acculturation, and posed a significant nation-building challenge for the dominant Anglo-Protestant western Europeans who had arrived a few generations earlier.

Changes in family structure and functions accompanied the economic transformation. A reduction in the number and spacing of children, a shift of economic functions from the family to other work environments, and a modernizing and privatizing of the family substantially modified the roles of women and children. The ideas of childhood and adolescence are socially constructed. Culminating a trend that began centuries earlier, during this modernizing era the upper and middle classes promoted a new ideology of children as vulnerable, corruptible innocents who required special attention and preparation for life. The new vision of childhood led parents and others to differentiate and isolate children from adults, altered child-rearing practices, and imposed on parents the responsibility to protect the child from engagement with the wider society and simultaneously to mold, shape, and prepare her to realize her potential in it.

Modernization and industrialization sparked the Progressive movement that addressed social problems ranging from economic regulation to criminal justice and political reform. Progressive reformers believed that professionals and experts could develop rational and scientific solutions, and that benevolent government officials could intervene to remedy social and economic problems. Social changes associated with modernization, such as urbanization and immigration, posed problems of cohesion, social control, and assimilation. As informal social controls weakened, Progressive reformers placed increased reliance on formal organization to govern, to maintain order, and to oversee social change. Progressives attempted to "Americanize" the immigrants and poor through a variety of agencies of assimilation and acculturation to become sober, virtuous, middle-class Americans like themselves. The Progressives coupled their trust of state power with the changing cultural conception of children and entered the realm of "child-saving." In his study of the Progressive era and policies, historian Robert Wiebe wrote that "If humanitarian progressivism had a central theme, it was the child. He united the campaigns for health, education and a richer city environment, and he dominated much of the interest in labor legislation. . . . The most popular versions of legal and penal reform also emphasized the needs of youth. . . . The child was the carrier of tomorrow's hope whose innocence and freedom made him singularly receptive to education in rational, humane behavior. Protect him, nurture him, and in his manhood he would create that bright new world of the progressives' vision" (p. 169). Child-centered reforms, such as juvenile court, child labor, social welfare, and compulsory school attendance laws both reflected and advanced the changing imagery of childhood and Progressives' special concerns about poor and immigrant children.

Ideological changes in theories of crime causation led Progressives to formulate new criminal justice and social control policies. At the turn of the century, Progressive criminal justice reformers aspired to scientific status and sought to strengthen the similarities between the causal determinism of the natural sciences and those of the social sciences. Criminology borrowed both its methodology and vocabulary from the increasingly scientific medical profession. Positive criminology rejected "free will," asserted a scientific determinism of deviance, redirected criminological research scientifically to study offenders, and sought to identify the factors that caused crime and delinquency. Reformers assumed that criminal behavior was determined rather than chosen, reduced actors' moral responsibility for their behavior, and tried to change offenders rather than punish them for their offenses.

A growing class of social science professionals adopted medical analogies to "treat" offenders and fostered the "Rehabilitative Ideal" in criminal justice policies. A flourishing "Rehabilitative Ideal" requires a belief in the malleability of human behavior and a basic consensus about the appropriate directions of human change. The "rehabilitative" ideology permeated many Progressive criminal justice reforms such as probation and parole, indeterminate sentences, and the juvenile court, and fostered open-ended, informal, and highly flexible policies.

The juvenile court combined the new conception of children with new strategies of social control to produce a judicial-welfare alternative to criminal justice, to remove children from the adult process, to enforce the newer conception of children's dependency, and to substitute the state as parens patriae. The juvenile court's "Rehabilitative Ideal" rested on several sets of assumptions about positive criminology, children's malleability, and the availability of effective intervention strategies to act in the child's "best interests."

Progressive "child-savers" described juvenile courts as benign, nonpunitive, and therapeutic, although modern writers question whether the movement should be seen as a humanitarian attempt to save poor and immigrant children, or as an effort to expand state social control over them. The legal doctrine of parens patriae legitimated intervention and supported the view that juvenile court conducted civil rather than criminal proceedings. Characterizing intervention as a civil or welfare proceeding, rather than criminal, fulfilled the reformers' desire to remove children from the adult justice system and allowed greater flexibility to supervise, treat, and control children. Because reformers eschewed punishment, the juvenile court's "status jurisdiction" enabled them to respond to noncriminal behavior such as smoking, sexual activity, truancy, immorality, or living a wayward, idle, and dissolute life. Juvenile courts' status jurisdiction reflected the social construction of childhood and adolescence that emerged during the nineteenth century, and authorized pre-delinquent intervention to forestall premature adult autonomy and enforce the dependent position of youth. Girls appeared in juvenile courts almost exclusively for the status "offense" of "sexual precocity," and they often received more severe dispositions than did boys involved in criminal misconduct. Sexually active young women exercised the ultimate adult prerogative and posed a fundamental challenge to Victorians' sexual sensibilities and Progressives' construction of childhood innocence.

The juvenile court's "Rehabilitative Ideal" envisioned a specialized judge trained in social sciences and child development whose empathic qualities and insight would aid in making individualized dispositions. Judicial discretion, local diversity, and informal processes fostered many versions of juvenile courts that differed substantially in philosophy and practice. In a system of discretionary justice, neither procedural rules nor legal formalities constrained the judge. Social service personnel, clinicians, and probation officers would assist the judge to decide the "best interests" of the child. Progressives assumed that a rational, scientific analysis of facts would reveal the proper diagnosis and prescribe the cure. The factual inquiry into the child's social circumstances accorded minor significance to the specific crime because the offense indicated little about his or her "real needs." Because the reformers acted benevolently, individualized their solicitude, and intervened scientifically, they saw no reason to circumscribe narrowly the power of the state. Rather, they maximized discretion to diagnose and treat, and focused on the child's character, social circumstances, and lifestyle rather than on the crime.

By separating children from adults and providing a rehabilitative alternative to punishment, juvenile courts rejected the criminal law's jurisprudence and procedural safeguards such as juries and lawyers. Because parens patriae theory rested on the idea that the court helped the child rather than tried or punished the youth for a crime, no reasons even existed to determine a child's criminal responsibility. Court personnel used informal procedures and a euphemistic vocabulary to eliminate any stigma and implication of an adult criminal proceeding. They provided informal, confidential and private hearings, limited access to court records, "adjudicated" youths as "delinquent" rather than convicted them of crimes, and imposed "dispositions" rather than sentences. Theoretically, a child's "best interests," background, and welfare guided dispositions. Because a youth's offense provided only a symptom of his or her "real" needs, courts imposed indeterminate and nonproportional dispositions that potentially could continue for the duration of minority.

Procedure and substance intertwine in the juvenile court. Procedurally, juvenile courts used informal processes, confidential hearings, and a euphemistic vocabulary to obscure and disguise the reality of coercive social control. Substantively, juvenile courts used indeterminate, nonproportional sentences, emphasized treatment and supervision rather than punishment, and purportedly focused on offenders' future welfare rather than on past offenses. Despite their benevolent rhetoric, however, the Progressive "childsavers" who created the juvenile court deliberately designed it to discriminate, to "Americanize" immigrants and the poor, and to provide a coercive mechanism to distinguish between their own and "other people's children."

Juvenile courts resolved many cases informally and used probation as the disposition of first resort for the vast majority of delinquents. Juvenile court legislation and practice systematized and expended the use of probation as an alternative to institutions for younger offenders. Probation officers functioned as intermediaries to provide the court with information about the child and to supervise those youths whom the court returned to the community. Reformers envisioned probation as an alternative to dismissal rather than to confinement and used it to expand the scope of formal control over youths.

While probation constituted the disposition of first resort, Progressive reformers relied on institutional confinement as a disposition of last resort. Their feelings of tenderness did not cause them to shrink from toughness when required. The indeterminate and discretionary powers they exercised quickly to release some "rehabilitated" offenders also resulted in the prolonged incarceration of other "incorrigible" youths. Progressives' willingness to incarcerate some delinquents reflected their elevation of the power of the court over the family and their determination to save poor and immigrant children. They expanded the cottage-plan model in youth reformatories, used surrogate cottage parents to create a "normal" family environment within the institution, and attempted to promote a child's adjustment and development. They relabeled reformatories as "vocational schools" or "industrial training schools" to emphasize their nonpenal character and added academic and vocational education to their "rehabilitative" program. In the 1920s and 1930s the rising influences of psychology and psychiatry prompted institutional administrators to engraft a hospital therapy regime onto the family and school models. Social workers, psychologists, and psychiatrists regarded the hospital-child guidance clinic model as especially appropriate for juvenile institutions where staff diagnosed and cured delinquency.

While psychologisms and rehabilitative rhetoric lent symbolic legitimacy to the juvenile courts and its institutions, practical programs and clinical personnel never approached juvenile justice reformers' therapeutic aspirations or claims. Progressives' rehabilitative rhetoric functioned to assert the incompetence of children, to define a relationship of dependency between juveniles and the state, to legitimate institutional practices to an uncritical public audience, and to obscure the reality of correctional practices. Historians conclude that with only a few notable exceptions, such as Denver's Ben Lindsey, most juvenile court judges and probation personnel were mediocre and their programs ineffective. Probation staff rarely possessed the resources, services, or expertise necessary to assist young people. Institutions seldom provided conditions conducive to reform and rehabilitation, and most incarcerated delinquents' institutional experiences remained essentially custodial and punitive.

In their pursuit of the "Rehabilitative Ideal," the Progressives situated the juvenile court on a number of cultural, legal, and criminological fault lines. They created several binary conceptions for the juvenile and criminal justice systems: either child or adult; either determinism or free-will; either dependent or responsible; either treatment or punishment; either social welfare or just deserts; either procedural informality or formality; either discretion or rules. Juvenile court reforms since In re Gault have witnessed a shift from the former to the latter of each of these binary pairs in response to the structural and racial transformation of cities, the rise in serious youth crime, and the erosion of the rehabilitative assumptions of the juvenile court.

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