An Overview of the Juvenile Justice System

Randall G. Shelden

and

Daniel Macallair

The juvenile justice system in America originated with the New York House of Refuge in the early 19^th century. The founders of this establishment called it a “school.”  The State Supreme Court of Pennsylvania, in its famous 1938 decision in Ex Parte Crouse, stated that the aims of the house of refuge were to reform the youngsters within them “by training . . . [them] to industry; by imbuing their minds with the principles of morality and religion; by furnishing them with means to earn a living; and above all, by separating them from the corrupting influences of improper associates.” Subsequent investigations have found that there was an enormous amount of abuse within these institutions and failed to provide any semblance of reform. The closures of these prisons came after numerous scandals.  The abuses continued within the institutions that followed (e.g., “training schools” and “detention centers”), so that by the early years of the 21^st century we read of similar scandals in more “modern” institutions such as the California Youth Authority (CYA).[i1

At the turn of the 20^th century the modern juvenile justice system was completed with the founding of the juvenile court.  The legislation that created the court created new categories of offenses and extended the state's power over the lives of children and youth.  The “child saving” movement (which began at the end of the 19^th century) resulted in the establishment of new institutions (e.g., juvenile court and “training schools”) to “care for,” “control,” and “protect” errant and wayward youth. The juvenile court would look after the “best interests of the child” with the juvenile court judge acting like a benevolent, yet stern father. The proceedings were to be informal without the traditional judicial trappings. There was neither a need for lawyers nor constitutional safeguards because first of all the cases were not “criminal” in nature and second the court would always act “in the best interests of the child.”  The court was to be operated like a “clinic” and the child was to be “diagnosed” in order to determine the extent of his “condition” and to prescribe the correct “treatment” plan, preferably as early in life as possible.

It did not take too long for the problems that plagued the houses of refuge and similar institutions (e.g., “reform schools”) began to confront the juvenile court.  These problems included rampant racism, along with both class and gender bias.  Especially prevalent was the problem of the “double standard” as girls were hauled into juvenile court on vague charges such as being “incorrigible,” “immoral” and other “status offenses,” many of which stemmed from normal adolescent sexual behavior (in one case a Memphis girl was cited for, among other things, holding hands in the park with a boy).

Some of these issues were finally confronted by the U.S. Supreme Court in the 1960s in cases like In re Gault and Kent v. United States.  It was in the latter case that Justice Abe Fortas issued one of the strongest indictments of the juvenile court ever, writing that: “There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both world; that he gets neither the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children.” In the Gault case it was again Fortas who charged that the juvenile court was merely a “kangaroo court.”[2]

These two cases, and several others to follow, have not done much to alleviate some of the serious issues that have confronted the juvenile justice system over the past 150 plus years. Recent data clearly show both racial and gender biases persist.  The most recent data show that black youth have an incarceration rate about five times the rate for white youths, while girls are more likely to be locked up for status offenses than their male counterparts.

Abuses are rampant throughout the system, especially in one of the most notorious of all the “training schools,” the California Youth Authority.  Detention facilities continue to be plagued by overcrowding, while filled with mostly minority youth and youth with serious mental problems (which are now handled far too often through the juvenile justice system because of cutbacks in mental health services within the community).

In the past 20 years, despite actual declines in youth crime rates, public perceptions of youth violence have contributed to widespread support for the dismantling of the juvenile court system and tougher crime legislation, like trying children as adults and increasing incarceration as the solution to juvenile delinquency.

Research shows that incarceration does not rehabilitate juvenile offenders and that more and more youth who end up in juvenile halls or state prisons are non-violent offenders.

The juvenile court, with its rehabilitative mission, could be much more flexible and informal than the criminal court. Due process protections, an attorney for the state and the youth were deemed unnecessary. A range of dispositional options that were related to the child’s situation, and not only to the crime, was available to a judge.

Key Players in the Juvenile Justice System

As with any component of the modern legal system, there are a number of individuals and organizations directly and indirectly involved in the daily operation of the juvenile justice system.  Reformers need to be aware of these key players, for any changes will require their input and, in some cases, will be resisted by them. Although the following chart was based upon the California system, the key players remain the same throughout the country.

The Juvenile Justice Process

Figure 1 depicts the various stages through which youths are processed within the juvenile justice system.  As many years of research has found, there is a lot of “sifting and sorting” within each of these stages whereby youths are “filtered out” at each stage.  One example is provided in Figure 2, showing statewide data in California.  This system has been previously described as a “homogenization process” whereby the offenses and the offenders become more and more homogeneous (in terms of social class, race, gender and other characteristics) the further one goes into the system.[3] Figure 3 illustrates how race enters into the picture and how black offenders are underrepresented in the general population, yet are overrepresented at every stage of the process. Numerous studies dating back at least 50 years have shown racial bias to be quite evident throughout the country.  Some of this research is noted below.[4]

  Figure 1. The Juvenile Court Process.

Figure 2.  The filtering process at work in California.

Figure 3.  Percent African-American Youth at Each Stage of the Juvenile Justice Process.

Source:  Building Blocks for youth, “And Justice for Some.”  April, 2000.

http://cjcj.org/jjic/race_jj.php.

The following charts display the detained juvenile population in California in 2000 broken down by offense, age, gender and race. Bookings in juvenile hall and those committed to the California Youth Authority (CYA) are shown here.[5]

Figure 4. Detained Juvenile Population in California.  (If this does not appear on your computer, go to the following link: http://cjcj.org/jjic/intro.php)

Type of Offense

Average Age

Gender

Race

Given the fact that the police make so many ar­rests of persons under the age of 18, it should come as no surprise that the largest percentage of referrals to the juvenile court come from the police (over 80%).  Thus, it is safe to conclude that the first stage of the juvenile justice system begins when the police ap­prehend a youngster for an alleged offense.  Following the arrest of a juvenile offender, a law enforcement officer has the discretion to release the juvenile to his or her parents, or take the offender to the juvenile court (often called “juvenile hall” or just “intake”).

In most jurisdictions the police have several options when contact with a juvenile is made (either because of a citizen complaint or an on-site observation of an alleged offense). First, they can, and often do, simply warn and release (for instance, telling a group of young people hanging around a street corner to “move along” or “go home”). Second, they can release after filling out an interview card (“field investigation card” or “field contact card”). Third, they can make a “station adjustment” where a youth is brought to the police station and then either (1) released to a parent or guardian, or (2) released with a referral to some community agency. Fourth, they can issue a misdemeanor citation, which will require the youth and a parent or guardian to appear in juvenile court at some future date (not unlike a traffic ticket). Fifth, they can transport a youth to the juvenile court after making a formal arrest.

If the offender is booked, the probation department and/or the district attorney can choose to file a "petition" with the juvenile court, which is similar to filing charges in adult court. At this time, the district attorney could also request that the juvenile be "remanded" to adult court because of the nature of his or her offense. For a juvenile who is adjudicated and whose petition is sustained (tried and convicted) in juvenile court, the offender can be placed on probation in the community, placed in a foster care or group home, incarcerated in the county's juvenile ranch or camp, or sent to the Youth Authority as a ward of the state. In California, for instance, for a juvenile tried and convicted in adult court, the offender can be sentenced to the Department of Corrections, but can be placed in the Youth Authority through age 24.

Perhaps one of the most telling statistics is which of the above options the police use.  Looking backward in time we find that the police of today are far more likely to refer a youth to the juvenile court.  Three decades ago (in 1974) less than half (47%) of the cases where a juvenile was taken into custody by the police resulted in a referral to juvenile court. The bulk of the remainder of the cases (44%) were handled informally within the department.[6]   In 2001, the latest year for which figures are available, the vast majority (72.4%) were referred to the juvenile court, while less than one-fifth (19%) were handled within the department.[7]  This is a reflection of a much larger trend toward an increasing formality in our response to human problems. Schools used to handle minor conflicts, such as fights (now we have literally thousands of “assaults” processed through the juvenile courts); parents and community groups (mental health workers, counselors, youth leaders, sports coaches, etc.) used to handle various other youth problems.  And, as suggested above, even the police most often took care of minor problems without resorting to a formal arrest and referral to court.

The police, of course, have a great deal of discretion as to what courses of action to take when dealing with juveniles, or any other member of the public for that matter.  Once the police have apprehended a youth, several alternatives are available.  First, they can simply release with a warning. Second, they can release after filling out an interview card or some other official report that does not constitute an arrest, but nevertheless is an official record of a youth's deviant behavior. It is important to note that this information may be used against a youth at a later date. Yet the youth is not given the opportunity to answer these charges, a problem which has yet to be dealt with by the courts. Third, the police may make a “station adjustment” in which the youth is brought to the police station and either (1) released to a parent or guardian with an official repri­mand, (2) released with a referral to a community agency that deals with youth problems, or (3) released with a referral to a public or private mental health or social welfare agency. Fourth, the police may take the youth to the intake division of the juvenile court.[8]

The police are provided with few guidelines in how to determine what action to take in the case of a juvenile. In most states the police are empowered to arrest juveniles without a warrant if there is “reasonable grounds” to believe that the child (1) has committed a delinquent act, (2) is “unruly,” (3) is “in im­mediate danger from his surroundings,” or (4) has run away from home.

There is an incredible amount of discretion on the part of the police, which applies in almost everything they do.  In a classic statement made decades ago, Joseph Goldstein observed that police decision making represents “low visibility decisions in the administration of justice.”[9]  By this he meant that everyday decisions by police officers are done largely out of public view with little public scrutiny and that discretion is inherent in the job.  Full enforcement of the law is an impossibility, largely because of procedural restrictions governing the police (e.g., law of search and seizure), the ambiguity of many laws, limited police manpower (they can’t possible handle too many arrests), and many more. 

There are a large number of factors that determine the decision of the police when confronted with a potential law violation.  Speaking of discretion, Clemens Bartollas put it well when he wrote that the police officer is a “legal and social traffic director who can use his or her wide discretion to detour juveniles from the juvenile justice system or involve them with it.”[10]

As noted above, a major problem facing the juvenile justice system is the failure of the youth “correctional” system. During the past 200 years or so, much has been written about life inside a juvenile institution.   In the following section, we offer some vignettes of life as a ward of the state of California.

Life as a Juvenile Ward[11]

You miss being free more than anything... What you hate is the doors being locked at night. When you hear that key turning, it really does something to you... You hate being locked in your room. Every body hates being locked in. Being able to take a walk--even just a little walk--whenever you feel like it. Some days I feel like I’m going to jump out of my skin if I can’t go off by myself from everyone in the cottage, and just think by myself. You miss your freedom.

-Young Woman in Confinement

How to Survive

 

When you get there, you go to your own race and they run down what you have to do. If someone disrespects you, badmouths you or your family or your city -- you either fight or flee. Fighting gains you respect, If you run you’re a ‘lame’ or a ‘lop’ or a ‘leva.’ If you give in to pressure -- and the older boys pressure you all the time -- you’re a pressure case, a ‘P.C.’ And if you’re weak, they could rape you.

- CYA ward

The Rules

All movements are to be in bank order formation and on silence. All wards are to be silent upon exiting the cottage for movement. Pictures may be hung on the inside of the lockers (only). No carpeting in rooms and dorms. No visiting is allowed in the dorm. Showers are in silence. Wards are allowed five minutes to shower from the time they leave their bunks. Wards that just finished showering area allowed five minutes in the latrine to dry off, brush their teeth....

-Rules in a locked dorm for 13-15 year olds

On Being Incarcerated for the Third Time:

 

There were a lot of weak people in there, and I had finally learned how to use my mind to manipulate. Plus, I could use a knife; most people don’t want to die, but I didn’t care. In DeWitt Nelson, I was the assaulter, I took what I wanted: radios, cigarettes, commissary, clothes, sex. I felt powerful. What I said was the word. People did what I wanted. They were scared of me. CYA had helped me get worse.

-Former CYA ward

The Juvenile Court: A Dubious Record of Achievement 

            Viewing the various dispositions within each stage of the juvenile court process from the perspective of the philosophy of the juvenile court (i.e., parens patriae), we see an interesting irony: The court philosophy and theoretical perspective on delinquency assume that delinquency is a symptom of some sort of problem and that the court should “protect” or “look after” children who come to its attention or otherwise “treat” these problems. Yet the court either dismisses out- right or gives minimal or no supervision over two-thirds of all who come through its doors. This is especially true when we consider that those who are placed on probation get very little supervision, as so many studies have shown.  Although 25 years old, a survey of juvenile courts in 1974 by Sar­ri and Hasenfeld noted that probation officers saw their clients about an average of once a month for an average of 30 minutes and that overall they spent about 40 percent of their time in direct contact with clients, mostly in the office. They further note:

            Observation of 78 probation interviews in the field sample revealed that very little counseling oc­curred, most of the interviews (68 percent) involved surveillance -ei­ther general checks on youth's current conditions (e.g., at home or school) or specific discussions of probation rules. Very few interviews (14 percent) involved actual problem solving. In 70 percent of the probation interviews observed, no services were requested, and in 54 percent no services were suggested by the worker. Services were requested and offered for interpersonal problems in only 2 percent and 3 percent, respectively, of the interviews.[12]

Sarri and Hasenfeld reached the following conclusion:

Throughout this study one is repeatedly confronted with inescapable am­biguities and contradictions in the goals, ideology, structure, and opera­tions of juvenile courts. Thus, for example, courts profess to pursue both a “crime control” and a “youth concern” goal. Courts operate under the as­sumption that they must protect the community, yet the bulk of the cases referred to them are in fact “juvenile nuisances.” Courts profess to assist troubled youth to receive needed services and yet they tend to be quite isolated from the community network of youth serving agencies. Courts develop complex and elaborate decision-making structures, presumably to identify the needs of the child and determine the best approaches to meet them. Yet over half of all the children referred to the courts are sent away with little more than a friendly warning, and most of the rest are put on probation, which is little more than surveillance. Courts establish formal procedures to maintain due process, but, in practice, adhere to few of them.[13]

It appears that not too much has changed since the time these observations were made by Sarri and Hasenfeld.  Writing almost 20 years later, Krisberg and Austin observe that:

Our analysis paints a discouraging picture.  Juvenile laws are vaguely worded and inconsistently applied, permitting extensive abuses in the handling of children by social control agencies whose discretion is largely unchecked.  Instead of protecting children from injustices and unwarranted state intervention, the opposite effect frequently occurs.  The practices and procedures of juvenile justice mirror our society's class and racial prejudices and fall disproportionately on African-American, Latino, and poor people.[14]

More than 10 years later the California Youth Authority, among other juvenile correctional systems, finds itself under a huge crisis and besieged by critics (for further discussion see chapter 1 in this volume). Writing in the San Francisco Chronicle Dan Macallair had this to say about the CYA:

The recent revelations about California’s youth prison system serve as another graphic reminder of its historic failure and the state’s inability to abandon this futile institution-based approach.  Since the early 1980’s there have been no fewer than 8 major bipartisan and legislative studies detailing the system’s inherent design flaws, yet no curative efforts have been instituted.  Previous responses to the abuse and mismanagement within the California Youth Authority (CYA) have always followed a common pattern.  After an initial period of public outrage, CYA officials pronounce their intentions to correct the problems.  Responding to these promises, legislators allocate additional funds for specified purposes – hiring more counselors or improving the institution’s physical appearance.  With assurances from CYA officials and the allocation of new funds, legislators move on to other issues and public attention fades.  However, no meaningful reforms ever take place and the system quickly reverts to its old practices.

Unfortunately, the current problems afflicting the CYA are structural and cannot be fixed.  The CYA’s congregate institutional design represents the last vestige of the long discredited 19^th century reform school model.  The CYA’s 11 institutions housing between 400 and 1200 youths, are primarily comprised of living units where up to 80 youths reside in wide-open dormitories without any privacy or protection.  Under such circumstances, youths must constantly be on guard and ready to fight or risk exploitation and abuse by other wards.  Daily stress and pressures within these dormitories build as ward frustration compounds during the 36-month average length of stay in CYA. The only staff person present when frequent fights or riots break out during the night in these open dormitories is a single guard in a fenced-in cage.  The guard’s responsibility is to throw a tear gas bomb into the unit and summon help.  In the meantime, an unwary youth can suffer serious injuries by falling asleep too soon and not being alert to possible attack. 

Juveniles sent to CYA also quickly learn that gang membership is a necessary part of institutional survival.  Even those unschooled in gang subculture quickly learn to adapt and assimilate.  Membership in one of the CYA’s race and ethnic-based gangs offers a sense of solidarity and protection from the day-to-day dangers inside the Youth Authority.  Earning membership in an institution-based gang requires demonstrating a willingness to engage in violence by attacking another ward.  This type of violent action earns the ward respect and elevates their status within the institutional hierarchy.  Wards who do not fight face constant threats and harassment. 

Such violent institutional conditions render any attempt to establish rehabilitative programming futile.  A pre-requisite to rehabilitation is a safe and stable environment that encourages youths to form trusting bonds with adult caretakers without fear of retaliation and attack.  Achieving a system that can rehabilitate requires abandoning the old congregate reform school model and instituting a system of small therapeutically oriented facilities. 

Under this plan California should move to immediately begin closing Youth Authority facilities and transferring the bulk of the system’s $400 million budget to the counties.  Each county could then implement a range of services and rehabilitative programs along with creating smaller regional alternative facilities.  In addition, the age of county jurisdiction should be raised to 21 for designated offenses with counties expected to maximize the use of available foster care, Medicaid, independent living and special education federal funding.[15] 

With recidivism rates of 90 percent, the CYA is obviously a poor investment for the state’s taxpayers.  The time has come to institute juvenile correctional policies that consider the public’s long-term interests through a more sensible, comprehensive, and effective treatment system.

Finally, Jerome Miller, reflecting on his own 30 plus years of working with youthful offenders, notes that one of the problems within the modern juvenile justice system is the method of diagnosing youth and recommending appropriate dispositions.  He notes that the “treatment options” that the diagnostician has in mine helps to determine the actual diagnosis of the youth, rather than the other way around, as we generally assume.  In reality, he notes, “the theory-diagnosis-treatment flow runs backward.  The diagnostician looks first to the means available for handling the client, then labels the client, and finally justifies the label with psychiatric or sociological theory.  Diagnosis virtually never determines treatment; treatment dictates diagnosis.”[16]    

            Increasingly, the juvenile courts, perhaps giving in to the “law and order” rhetoric of the past two decades, have begun to rely upon one of the most extreme disposition within the juvenile justice system, namely certifying a youth as an adult.  It is as if they have said: “We give up!  We have done everything we can think of to help you.”  Yet, as will be shown later in the chapter, those the court has “given up on” are disproportionately African-American youths.  They are, in effect, disposable children.