Chapter 11

 PROCESSING OFFENDERS THROUGH THE JUVENILE JUSTICE SYSTEM 

 Juvenile Laws

·         Status offenses – remain the main distinguishing feature of juvenile laws

·         Incorrigible, unmanageable, etc. define what amounts to a “property” relationship between parent and child

·          ambiguity gives those in authority great discretionary power

·          often leads to arbitrary decisions based on subjective value judgments

The Rights of Juveniles

·         Kent v. United States (1966) – first major US Supreme Court decision regarding juvenile court

o    Concerned certification as adult

o     Kent, a 16 year old, raped and robbed a woman and was certified without a hearing, with no lawyer and was sentenced to 30-90 years!

o     Court ruled that due process must be observed

o     Abe Fortas remarked 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.”

o    Prior to being waived to an adult court, a juvenile had a right to (1) a hearing on the move, (2) access to social service reports, and (3) a statement of reasons for the waiver.

In re Gault

• The most famous decision involved 15-year-old Gerald and his friends who made some lewd phone calls to a woman that lived nearby

·         She recognized his voice and called the cops

·         Gerald was found guilty and committed to the Boys Industrial School until his age of majority – 21 years

·         In short, he got a 6 year sentence for an offense that would bring at best a 6 month jail term if committed as an adult

·          Was not allowed to confront witnesses, not provided a lawyer, his parents were not even notified that he had been arrested

• Ariz. Supreme Court affirmed the decision

The Supreme Court Decision

• Supreme Court overruled and  Justice Abe Fortas, again, had the classic statement, as he wrote that:

·         “the condition of being a boy does not justify a kangaroo court.”

• The Court held that at the adjudicatory hearing stage, juvenile court procedures must include:

– (1) adequate written notice of charges,

– (2) the right to counsel

– (3) privilege against self-incrimination

– (4) the right to cross-examine accusers

– (5) a transcript of the proceedings, and

– (6) the right to appellate review

Other Major Decisions

In re Winship – ruled the juvenile court should adhere to the standard “beyond a reasonable doubt” instead of “a preponderance of the evidence” as in civil courts

McKeiver v. Pennsylvania – ruled that jury trials are admissible but not mandatory (recall this was a big issue in the Crouse case)

Breed v. Jones – similar to Kent in that it dealt with waiver but in this case the youth had already been adjudicated in juvenile court, then tried in adult court for the same offense, which is “double jeopardy”

·         Court ruled that the waiver must be made before being adjudicated

 

·         Schall v. Martin – concerned the issue of “preventive detention”

o    Supreme Court said that preventive detention serves a legitimate objective to protect both the juvenile and society from pretrial crime and is not intended as punishment.

o    More or less supported the doctrine of Parens Patraie

·         Note: In most cases juveniles waive their right to counsel and admit guilt

 

Right to Treatment

·         Several court cases have dealt with the theory behind juvenile justice, namely that the aim is rehabilitation

·          Inmates of the Boys’ Training School v. Affleck (1972)

o    – minimal standards were established, such as sufficient clothing to meet seasonal needs, proper bedding (sheets, pillow cases, etc.), personal hygiene supplies, minimal writing materials and access to books and other reading materials, daily showers, and others

o    – Amazing that these were not being met at the time!

·         US has investigated conditions of confinement in more than 100 juvenile facilities in sixteen states

o    Currently monitors conditions in more than 65 facilities that operate under settlement agreements with the United States.

The Eighth Amendment Protection

Death Penalty Case

·         1955, the US ratified Article 68 of the Fourth Geneva Convention (1949), which states “the death penalty may not be pronounced on a protected person who was under 18 years of age at the time of the offense.” 

·         Yet for five decades, the U.S. protected youthful offenders in other countries from the death penalty during war or armed conflict but did not offer the youth in this country the same protections during peace.

·         Likewise with the International Covenant on Civil and Political Rights was signed by the U.S. in 1977 and ratified in 1992

·         Dwayne Allen Wright was executed in Virginia but jurors were not made aware of the face that he suffered brain damage at birth

·         Thompson v. Oklahoma – Court ruled that the “cruel and unusual punishments" provision of the Eighth Amendment prohibits the execution of a person who was under 16 years of age at the time of his or her offense

·         Roper v. Simmons

·         Another landmark Supreme Court Decision where the Court had access to all sorts of expert opinions about adolescent development and brain functioning

·         Court that juvenile executions violated the Eighth Amendment’s provision against cruel and unusual punishment under the “evolving standards of decency” test.

Life without Parole

·         Supreme Court (Graham v. Florida) ruled that juveniles who commit crimes in which no one is killed may not be sentenced to life without parole. 

o    Such sentences violate the Eighth Amendment prohibition against cruel and unusual punishment.

o    Justice Kennedy - the State had denied Graham “any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.”

·         Not considered were cases of homicide committed while under age.

o    As of 2009, 2,574 inmates who were serving life without parole for crimes committed as juveniles; mostly homicide

o    Example: 16-year-old girl killed her pimp after three years of brutal treatment and is not 32 after a life without parole sentence

o    Most of these cases are in the South (75%), mostly Florida (the South is way behind the times in most cases)

Structure & Process of Juvenile Court

• Many are huge bureaucracies with several 100 personnel

·         Judges, probation officers, lawyers, psychologists, medical staff, etc.

·         Some are called “Family Courts” (e.g., Las Vegas)

• Different terminology for the stages in the process.

petition = indictment

adjudicatory hearing = trial

dispositional hearing = sentencing hearing

aftercare = parole

Commitment = sentence

detention = jail

taking into custody = being arrested

• See figure 11.1

Police action

• An important statistic:

– 1974 - less than half of the cases where a juvenile was taken into custody by the police resulted in a referral to juvenile court

– 2008, 68% were referred to the juvenile court

• Reflects trend toward increasing formality in our response to human problems.

• Does this mean that the offenses committed by youths are getting more serious and thus require more formal processing? No.

– The offenses for which the majority of youths are charged remain minor—as they have always been (see Table 11.1) – many “assaults” (fights) on school grounds now referred to juvenile court

·         Police Discretion and Juveniles

o    Police decisions are out of public view with little public scrutiny—discretion is inherent in the job.

o    Officers can use their discretion to detour juveniles from the juvenile justice system or to involve them with it.

·         Police have several alternatives available when they encounter delinquent behavior

o    release with a warning, or they can release after filling out a report that may be used against them at a later date

o    release to a parent or guardian

o    release with a referral to a community agency, or to a mental health or social welfare agency.

o    Start formal processing - the intake process.

·         Note the 9 major factors that influence the decision

Referrals to Juvenile Court

• From 1998-2007 most cases went down; what went up were public order offenses:

·         Obstruction of justice – up 2%

·         Disorderly conduct – up 39%

·         Liquor-law violations – up 76%

·         Other public order – up 59%

·         Person offenses – up 1%

·         Simple assault – up 4%

·         Other violent sex offense – up 20%

·         Robbery – up 4%

• Juvenile court handling minor offenses more than ever

• No wonder about 1/3 of all cases are dismissed!

Race, the “War on Drugs,” and Referrals to Juvenile Court

• Between 1985 and 2007 Drug cases for blacks went up 223% vs. 127% for whites and public order offenses jumped by almost 300% for blacks compared to 98% for whites

·         How do you explain such differences?

 

·         Table 11.4 – no matter what offense, black kids rank highest, followed by Hispanic, Native American and White

• Huge discrepancies in some cases

– Drugs – black detention rate about 7 x greater than whites (same ratio for violent index crimes)

• Why the discrepancy?

– No racial differences in terms of drug use

– Are blacks any more “violent” than whites? Only if you measure this by arrests, for in reality whites are far more violent (which race kills the most people?)

·         See figure 11.1 for racial differences at each stage – how would you explain this?  Is it environmental or personal?

The Influence of Social Class

·         socioeconomic status of a community largely determines formal processing – the lower the status, the more likely will there be a referral to court

·         Social class is a term rarely understood and rarely spoken about in the media and elsewhere; yet we are a highly class structured society (recall the discussion in chapter 8 about the distribution or income and wealth)

·         Study by William Chambliss done over 40 years ago still relevant today

The Intake Process and the Decision to Detain

·         Often begins when the police issue a misdemeanor citation (not unlike a traffic ticket) ordering a juvenile to appear in court

·         Intake process is a unique feature of the juvenile court

·         Intake division is staffed by full-time employees of the court (normally probation officers) and they engage in preliminary “screening” of cases

·         Options:

o    dismissal,

o    informal supervision, or “informal probation,”

o    referral to another agency

o    formal petition to the court.

·         Decision to detain based upon:

o    May harm self and/or others or be in danger of being harmed by others

o    No parents or guardians capable of taking care of them, is homeless/runaway

o    Court believes the youth will flee if not detained

·         Normally use “risk assessment instrument” (figure 11-3)

o    Can be misused and predictive accuracy has been questioned

·         Most in detention have not been charged with a serious crime

·         Options after detention decision has been made:

o    counsel, warn, and release

o    informal probation

o    referral to another agency

o    consent decree (more restrictions than informal probation)

o    petition to court for adjudicatory hearing

·         Note racial differences in detention rates

Adjudication

·         Roughly equivalent to trial in adult court but often more informal

·         two types of hearings:

o    adjudicatory hearing - fact-finding stage

o    dispositional hearing - separate hearing altogether, part of what is often referred to as a “bifurcated system.”

·         Dispositional hearing - two important documents prepared by probation dept.

o    Legal – referral history

o    Social - personal information (family background, etc.)

o    From these two files the probation dept. writes a “presentence report”

·         Dispositions available:

o    dismissal,

o    probation,

o    commitment to an institution or “out-of-home placement” and

o    waiver to an adult court.

·         End result of above.  See Table 11-5

o    Note how few get out of home placements

o    Note also different results based on race; highest for blacks, next comes Hispanics and last are whites

o    Old saying from the 1960s: “If you’re white, you’re alright; if you’re brown, stick around; if you’re black, stay back.”

Keeping Offenders from Further Penetration

Diversion

• Many different examples, such as drug courts, truancy courts, mental health courts, etc. (not literally different “courts” per se, but programs within a juvenile court)

• Is this “new widening”?

– What does this mean?

– 1000 cases, 300 diverted to alternatives = 700 cases (1000-300)

– 1000 cases, 300 not normally found within the system = 1300

– Let’s say you start a new truancy program and instead of such cases being handled within the school, they are processed through a special program within the court – this is not true diversion, this is net widening

• Ideally, you want problems handled without formal processing

– A kid has problems at home, seek family counseling

Relative Rate Index (RRI)

·         As per the amended Juvenile Justice and Delinquency Prevention (JJDP) Act states are required to keep tabs on the proportion of minorities at each stage of the juvenile justice system

·         Supposed to make sure their numbers correspond to those in the general population or else lose federal funding

·         See this web site: http://www.ojjdp.gov/dmc/chronology.html

·         Studies continue to show most states are in violation

Probation

• Boston shoemaker John Augustus – 1841

• Took responsibility for drunks, then took children’s cases, diverting them from prison – true diversion!

• 1869 - the Mass. required that an agent of the state be present if child might end up in a reformatory

– They were to search for other placement, protect the child’s interests, investigate the case before trial, and supervise the plan for the child after disposition.

– 1878 Mass. created first official State probation system with salaried probation officers

• What began as a volunteer activity, in time became institutionalized and bureaucratized

Social Work or Law Enforcement?

• Probation officers soon became little more than an “arm of the court,” and many of the first officers were former policemen

• In many states today both probation and parole officers are designated as “peace officers” with many carrying both a badge and a gun

– sign on the office wall of the chief probation officer in California that read: “Trail ’em, “Surveil ’em, Nail ’em, and Jail ’em”

·         Social work functions often take a back seat to law enforcement functions

 

Should Probation Officers Be Armed?

·         Most states allow both parole and probation officers to be armed because of concerns for their safety

·         Critics point out that arming them interferes with the social work duties

·         Are they in danger? Little data available, although data are available on law enforcement officers killed (FBI report)

·         Rate of government workers killed is 1.9 per 100,000

·         Concerns over safety based totally on anecdotal evidence – a few isolated cases that become exaggerated

Duties of a Probation Officer

intake - provide preliminary investigation of cases as they first come into the system

Investigation - produces the social history report

supervision - surveillance, casework, counseling

• Large case-loads (50-100 or more) has led to Intensive supervision (IS) which entails small case-loads

House arrest - “official” form of “grounding.”

– Electronic monitoring - “new age” form of punishment that was originally inspired by a Spiderman comic strip (GPS also used)

• Neither IS nor house arrest have been proven very effective (big business likes it however)

A dubious Record of Achievement

• Despite reforms, the court does little more than process cases

·         Some probation officers have been guilty of misconduct, such as those reported in Los Angeles County

• Most delinquents get better through “maturational reform” – they grow up!

• Jerome Miller - Diagnosis virtually never determines treatment; treatment dictates diagnosis

– In short, they usually have a preconceived notion of what they want to do and then apply a diagnosis to fit

– Sort of like the Bush administration “fixing the facts to fit the policy”

Giving Up on Delinquent Youth: Transfer to Adult Court

• Three methods of certification

Legislative waiver or statutorial exclusion – some offenses automatically excluded from juvenile court jurisdiction, most commonly homicide

Judicial waiver – the judge makes the decision

discretionary waiver – gives power to the DA

• Judicial waivers and prosecutorial discretion are often arbitrary, fluctuating from judge to judge and jurisdiction to jurisdiction; they follow no consistent pattern – except that black kids get waived most often

Race & Waiver

• Every scholarly study has shown that certification has a racial bias

Has Certification Worked?

• In a word, no.

• Perhaps this is why there has been a decline in waivers in recent years

• Even conservative criminologist John DiIulio warned that “Most kids who get into serious trouble with the law need adult guidance. And they won’t find suitable role models in prison. Jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.”

• Increases chance of suicide & victimization by adults

• Higher recidivism rates