Juvenile Status Offenders

In 1965 a U.S. Children's Bureau compilation of local juvenile court cases in the mid-1960s found noncriminal cases constituted at least 26 percent of cases coming to court. Overall, a higher percentage of girls than boys had been charged in this fashion. The bureau's summary review of fifteen to twenty juvenile correctional institutions showed about 30 percent of residents had been committed on this basis. Its study of ten detention programs, local and state, showed that 48 percent of the 9,500 youths studied had not committed adult criminal acts. Of the 1,300 of these youths who had been held in adult jails pending hearings, 40 percent fell into the non-criminal category. Of the 8,200 of these youths who had been held in juvenile centers, 50 percent were in this category. One state reported in 1965 that 39 percent of children brought to its juvenile courts had been charged with noncriminal conduct.

Other studies reported that 45 to 55 percent of children committed to state delinquency institutions were status offenders, and that in the early 1970s, 60 to 70 percent of all girls ordered into these facilities had not committed criminal acts.

Reports such as these fueled concern that status offenders were being treated unfairly and should be handled differently than juvenile law violators. These concerns fused with the accelerating recognition that juvenile court intervention often failed, was not always benign, not infrequently led to abusive institutional or jail experiences, handicapped the way schools and employers and the military viewed these youths, was bereft of legal safeguards, and should be constrained.

In 1967 the U.S. Supreme Court issued a seminal decision that had immense impact on juvenile courts, including the handling of status offenders. In In re Gault it held that the juvenile court's procedures failed to meet constitutional standards of due process. Accordingly, children, like adults, must be afforded the right to counsel and to free counsel when a deprivation of freedom might occur. Other criminal court guarantees such as specific notice of charges, the privilege against self-incrimination, and the right to confront one's accusers, were mandated. One result of Gault was a sharp increase in defense lawyers in this setting. Attorneys proceeded to challenge numerous juvenile court practices, including those related to status offenders.

In the same year another major influence, the Report of the President's Commission on Law Enforcement and Administration of Justice, also sought to restructure juvenile courts to deal with more serious delinquency and to funnel less serious violations back to community agencies. It held special concern for the category of conduct considered illegal only for children. "This should be substantially circumscribed so that it ceases to include such acts as smoking, swearing, and disobedience to parents and comprehends only acts such as experimenting with drugs, repeatedly becoming pregnant out of wedlock, and being habitually truant from school. Serious consideration, at the least, should be given to complete elimination of the court's power over children for non-criminal conduct."

The commission embraced a consultant paper prepared for its delinquency task force that faulted the unexamined assumptions that these misbehaviors are precursors to delinquency, the lack of common meaning from one jurisdiction to another, or between different judges' ruling in the same jurisdiction, the absence of fixed criteria, and the assignment of criminal responsibility to children in many instances where blame or responsibility cannot be determined or where closer investigation would reveal their actions to have been reasonably normal responses to highly provocative or intolerable situations.

A second influential national report, promulgated in 1973 by the National Advisory Commission on Criminal Justice Standards and Goals, took two noteworthy positions: (1) the determination of delinquency should be reserved for a youth whose act, if committed by an adult, would constitute a criminal offense, and (2) only these delinquent youths should be eligible for commitment to institutions for delinquent children. The commission expressly avoided taking a position whether noncriminal conduct should be within the jurisdiction of a juvenile court.

These reports impacted the Federal Juvenile Justice and Delinquency Prevention Act ( JJ&DP, Public Law 93–415, as amended) of 1974, which, following a grace period, banned states that accepted funding from institutionalizing status offense juveniles in state delinquency facilities. A second provision fundamentally banned their lock-up in pretrial detention facilities, although an allowance was made for brief detention under certain conditions. Most states entered into this program, and their legislatures responded to enact laws that complied overall with these requirements. Implementation of this act significantly changed court handling of status offenders.

The juvenile justice system underwent a process that has been described as the four Ds: (1) Decriminalization, that is, taking status offenders out from delinquency definitions and constraining court authority with these youths; (2) Diversion from the court of lesser offenders, including status offenders; (3) Due process implementations at all processing stages; and (4) Deinstitutionalization of status offenders and delinquents in concert with some expansion of communitybased institutional alternative programs.

As states moved to constrain the locking-up of status offenders, both at pretrial and post-dispositional stages, related practices changed. Law enforcement officers were less willing to arrest runaways because the juvenile justice system would not lock up these youths, but instead would place them in a staff-secure, unlocked shelter care facility from which they could run away again. Police officers sometimes chose to apprehend a runaway not for that status, but upon the discovery of drug use or a petty theft, that is, a delinquency violation. Further, courts narrowed their entry doors since status offenders, if formally processed, could require the government to pay the cost of a lawyer and because secure institutionalization could not be an outcome of continuing defiance.

By 1980, there was growing interest in schools handling their own truancy problems, in families turning to community agency services and not to the courts, and, for example, in authorizations for courts other than juvenile courts to handle youthful alcohol violations. States reflected idiosyncratic approaches. Kentucky and Hawaii reported significantly higher rates of formal court handling of status offenders in 1993 than, for example, California and Illinois. With exceptions, urban juvenile courts increasingly confined their formal case processing to more chronic and more severe delinquents. Also with exceptions, suburban and rural juvenile courts often maintained significant status offender workloads, as other agency services were limited or did not particularly embrace these youths. Overall, community agencies did not pick up the slack of diminished court interest.

Over time, lawmakers shut down much of what juvenile courts had done earlier with status offenders. Pressures were placed on juvenile courts to find ways to use their authority to obtain control over these youths. One device known as "bootstrapping" gained currency in some courts. The initial status offense could not result in a freedom deprivation, but a judge would then prescribe rules of conduct. A status reoffense could, however, result in a civil contempt finding and placement in a nearby secure detention center. Bootstrapping was legitimated by amendment to the federal JJ&DP Act, and known as violation of a valid court order. States could still receive their federal moneys when secure detention was ordered via this mechanism.

Legal challenges to state jurisdiction over status offenders and juvenile court powers occurred in numerous states and resulted in conflicting outcomes. For example, a definition such as "beyond the control of his parents" was held to provide sufficient notice of impermissible behavior. Definitions of habitual disobedience and habitual truancy were upheld. Taking court jurisdiction for incorrigibility did not represent cruel and unusual punishment for children. Allowing status offense jurisdiction for girls up to an age older than for boys was disallowed. A single act of disobedience did not constitute beyond the control of one's parents. Curfew ordinances were approved or disapproved as to due process and equal protection of the laws depending upon their breadth and exceptions allowed. A parent in conflict with a child could not waive the child's right to counsel. A youth with fifty unauthorized school absences could not be committed to a state delinquency facility. While a status offender could not be committed to a delinquency institution, the youth could be committed to a training school designed exclusively for status offenders.

Senator Arlen Specter, the Chairman of the Subcommittee on Juvenile Justice of the U.S. Senate Committee on the Judiciary, wrote that at the time of the passage of the JJ&DP Act in 1974, close to 200,000 nondelinquent juveniles were held annually in secure confinement across the country. By 1981, however, this number had been reduced by 82 percent in the participating jurisdictions and 35 states were in full compliance with the deinstitutionalization mandate of the act.

There is some evidence that institutionalization of status offenders continues in a different form. Besides bootstrapping, two approaches are sometimes taken. The first involves a status offense by a delinquent youth who is on probation, since this misbehavior is proscribed by official probation conditions and the probation grant may be revoked. Data show this involves girls more often than boys. The second approach occurs with the substitution of other institutional settings, such as mental health institutions, treatment-oriented residential programs, and even drug treatment facilities. Data show that children of color are more often involved in the first approach, ending in public facilities, while white children more frequently end up in treatment in private facilities.