Juvenile Justice: History and Philosophy

During the 1960s, the Warren Court's civil rights decisions, criminal due process rulings, and "constitutional domestication" of the juvenile court responded to broader structural and demographic changes taking place in America, particularly those associated with race and youth crime. In the decades prior to and after World War II, black migration from the rural south to the urban north increased minority concentrations in urban ghettos, made race a national rather than a regional issue, and provided the political and legal impetus for the civil rights movement. The 1960s also witnessed increases in youth crime by the baby boom-generation that continued until the late 1970s. During the 1960s, the rise in youth crime and urban racial disorders provoked cries for "law and order" and provided the initial political impetus to "get tough." Republican politicians seized crime control and welfare as wedge issues with which to distinguish themselves from Democrats in order to woo white southern voters, and crime policies for the first time became a central issue in national partisan politics. As a result of "sound-bite" politics, since the 1960s, politicians' fear of being labeled "soft-on-crime" has led to a constant ratchetingup of punitiveness and changed juvenile justice ideology and practice.

These macro-structural and demographic changes eroded the rehabilitative premises of the Progressive juvenile court and undermined support for discretionary, coercive socialization in juvenile courts. A flourishing "rehabilitative ideal" assumes human malleability, the existence of effective techniques to change people, and a general agreement about what it means to be rehabilitated. Progressives believed that the new social sciences and the medical model of deviance provided them with the tools to reform people and that they should socialize and acculturate poor and immigrant children to become middle-class Americans like themselves. By the time of Gault, the Progressives' consensus about state benevolence, the legitimacy of imposing certain values on others, and what rehabilitation entailed and when it had occurred all became matters of intense dispute. The decline in deference to professionals and the benevolence of experts led to an increased emphasis on procedural formality, administrative regularity, and the rule of law.

During the turbulent 1960s, several forces combined to erode support for the rehabilitative enterprise and caused the Supreme Court to require more procedural safeguards in criminal and juvenile justice administration: left-wing critics of rehabilitation characterized governmental programs as coercive instruments of social control through which the state oppressed the poor and minorities; liberal became disenchanted with the unequal and disparate treatment of similarly situated offenders that resulted from treatment personnel's exercise of subjective clinical discretion; and conservatives advocated a "war on crime" and favored repression over rehabilitation. In the 1960s, the issue of race provided the crucial linkage between distrust of governmental benevolence, concern about social service personnel's discretionary decisionmaking, urban riots and the crisis of "law and order," and the Supreme Court's due process jurisprudence.

The Warren Court's due process decisions responded to the macro-structural and demographic changes, and attempted to guarantee civil rights, to protect minorities from state officials, and to infuse governmental services with greater equality by imposing procedural restraints on official discretion. The Supreme Court's Gault decision and later juvenile court cases mandated procedural safeguards in delinquency proceedings, focused judicial attention initially on whether the child committed an offense as prerequisite to sentencing, and demonstrated the linkages between procedure and substance in the juvenile court. In shifting the formal focus of juvenile courts from "real needs" to legal guilt, Gault identified two crucial disjunctions between juvenile justice rhetoric and reality: the theory versus the practice of "rehabilitation," and the differences between the procedural safeguards afforded adult defendants and those available to juvenile delinquents. Gault held that juveniles charged with crimes who faced institutional confinement required basic procedural safeguards including advance notice of charges, a fair and impartial hearing, assistance of counsel, an opportunity to confront and cross-examine witnesses, and the privilege against self-incrimination.

In In re Winship, 397 U.S. 358 (1970), the Court concluded that the risks of factual errors and unwarranted convictions and the need to protect juveniles against government power required states to prove delinquency by the criminal law's standard of proof "beyond a reasonable doubt" rather than by the lower "preponderance of the evidence" civil standard of proof. In Breed v. Jones, 421 U.S. 519 (1975), the Court posited a functional equivalence between criminal trials and delinquency proceedings, and held that the constitutional ban on double jeopardy precluded adult criminal reprosecution of a youth following a delinquency adjudication.

In McKeiver v. Pennsylvania, 403 U.S. 528 (1971), however, the Court denied to juveniles the constitutional right to a jury trial and halted the extension of full procedural parity with adult criminal prosecutions. In contrast with its analyses in earlier decisions, the McKeiver Court reasoned that "fundamental fairness" in delinquency proceedings required only "accurate fact-finding," a requirement that a juvenile court judge acting alone could satisfy as well as a jury. Unlike Gault and Winship, which recognized that procedural safeguards protect against governmental oppression, the Court in McKeiver denied that delinquents required such protection and instead invoked the stereotype of the sympathetic, paternalistic juvenile court judge. Unfortunately, McKeiver did not analyze or elaborate upon the differences between treatment as a juvenile and punishment as an adult that warranted the procedural differences between the two systems.

Together, Gault, Winship, and McKeiver precipitated a procedural and substantive revolution in the juvenile court system that unintentionally but inevitably transformed its original Progressive conception. By emphasizing criminal procedural regularity in the determination of delinquency, the Supreme Court shifted the focus of juvenile courts from paternalistic assessments of a youth's "real needs" to proof of commission of criminal acts. By formalizing the connection between criminal conduct and coercive intervention, the Court made explicit a relationship previously implicit and unacknowledged. Providing delinquents with even a modicum of procedural justice in juvenile courts also legitimated greater punitiveness. Thus, Gault's procedural reforms provided the impetus for the substantive convergence between juvenile and criminal courts, so that for most purposes, contemporary juvenile courts function as a scaled-down extension of the criminal justice system. It is an historical irony that race provided the initial impetus for the Supreme Court to expand procedural rights to protect minority youths' liberty interests, and now juvenile courts' increasingly punitive sanctions fall disproportionately heavily on minority offenders.

The Gault decision represents a procedural revolution that failed and that produced unintended negative consequences. Delinquents continue to receive the "worst of both worlds"—neither the solicitous care and regenerative treatment promised to children nor the criminal procedural rights of adults. McKeiver denied delinquents criminal procedural equality with adults, but the Court could not compel states to deliver social welfare services. Although youths lack procedural parity with adult defendants, providing delinquents with any procedural safeguards at all legitimated more punitive sanctions. Once states grant a semblance of procedural justice, however inadequate, it becomes easier for them to depart from a purely "rehabilitative" model of juvenile justice.

Juvenile courts' increased procedural formality in the decades since Gault also provided the impetus to adopt substantive "criminological triage" policies. The "triage" process entails deinstitutionalizing and diverting noncriminal status offenders out of the juvenile system at the "soft" end of the court's clientele, waiving serious offenders into the criminal justice system for prosecution as adult at the "hard" end, and punishing more severely the residual, middle-range of ordinary criminal-delinquent offenders. Recent "get-tough" waiver and sentencing policies reflect juvenile courts' broader jurisprudential changes from rehabilitation to retribution. The overarching themes of these legal and operational changes include a shift from individualized justice to just deserts, from offender to offense, from "amenability to treatment" to public safety, and a cultural and legal reconceptualization of youth from innocent and immature delinquents into responsible and autonomous offenders. The substantive and procedural convergence between juvenile and criminal courts eliminates many of the conceptual and operational differences in strategies of social control for youths and adults. With the juvenile court's transformation from an informal rehabilitative agency into a scaled-down criminal court, some question the need for a separate justice system for young offenders whose only distinction is its persisting deficiencies.