Reaffirming Juvenile Justice

From Gault to Montgomery

Alida V. Merlo, Peter J. Benekos

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351618373
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This book will expand students' knowledge and understanding of the evolution of juvenile justice in the last 50 years. Designed to coincide with the 50th anniversary of the landmark case In re Gault, which the U.S. Supreme Court decided in 1967, the authors provide a brief history of juvenile justice, then frame the developments and transformations that have occurred in the intervening years. Topics covered include an overview of the dramatic changes to the field following the spike in youth violence in the 1990s, the "superpredator" myth, zero-tolerance policies, and sanctions for juvenile offenders—particularly the 2005 abolition of the death penalty and subsequent decision on life without parole. The book also covers child and youth victimization and trauma, and recent prevention and treatment initiatives.

Designed for upper-level undergraduates, this text reflects on the evolving U.S. juvenile justice system while anticipating future challenges and trends. Reaffirming Juvenile Justice illustrates how ideology, media, and politics shape policy and how it can evolve.

1
Developing the Juvenile Justice System

Gault and Juvenile Justice

In a landmark decision, In re Gault (1967), the U.S. Supreme Court mandated specific due process protections for youth alleged to be delinquent, including the right to formal notice of the charges, the right to counsel, the right to cross-examine and confront witnesses, and the privilege against self-incrimination. The 50th anniversary of the Gault decision in 2017 affords an opportunity to reflect on what has transpired in the intervening years and to explore recent strategies for the prevention of youth victimization and offending and the treatment of youth. Significant changes have occurred, and there is evidence that the system recently has adopted a more treatment-oriented focus. Although examples of harsh policies continue, it is likely that attempts to soften the adultification and punitive nature of juvenile justice policies will be in the forefront for the remainder of the decade. The shift in policies and perceptions of youth seems to suggest that a reemergence of “rehabilitative” juvenile justice is occurring.

In this book, we review the history of juvenile court, significant U.S. Supreme Court decisions, policy developments, crime trends, strategies related to the prevention of maltreatment of children and youth, evidence-based research, the politicization of policy, and advances that are aligned more closely with the Court’s original mission. The early court aspired to intervene in the lives of children and youth to prevent their victimization and offending and to treat those youth who had engaged in delinquent conduct. It manifested a more benevolent attitude toward youth, and it relied on more positivist approaches. Two major concepts, individualized justice and parens patriae, predominated. Weiss (2013) characterizes this era as the first of the four waves of juvenile justice policy in the United States. The first wave began in 1899 when the juvenile court was established, and it continued until the 1960s. There was consensus that children were in need of protection and guidance and that they should be treated differently than adults (p. 3).

Our perspective is straightforward. In Gault, the Court authorized and expanded due process protections for children and youth. Despite the requirements for more formal and adult-like court proceedings, the justices reiterated that the juvenile court’s emphasis was on children and that this special court had to be retained for youth. The justices affirmed that “children are people” (Benekos and Merlo, 2016, p. 2; In re Gault, 1967; Ketcham, 1967; Stansby, 1967). Weiss (2013) categorizes this period as the second wave of juvenile justice policy, when due process protections emerged as the focal point. During the last 50 years, the juvenile justice system shifted to a more punitive approach influenced by conservative, neoclassical ideology. In the beginning of the 21st century, however, a more lenient and therapeutic-oriented perspective emerged, with an emphasis on preventing and treating maltreatment, trauma, and abuse. Reviewing those developments and Court decisions on the punishment of youth, we critique how the system has fared in upholding the due process mandates of the Court’s 1967 landmark ruling on the rights of children. Scientific research, Court decisions, legislative reforms, and therapeutic effectiveness indicate that we are once again at a crossroads in our perceptions of youthful offenders and in our strategies to prevent victimization and to treat juvenile offenders.

The Adultification of Juvenile Justice

In earlier work, we have assessed the transformation that occurred in criminal justice and most especially in juvenile justice through the interaction of ideology, politics, and the media. These dimensions affected the system and shifted the development of policies from professionals to politicians (Benekos and Merlo, 2006; Benekos and Merlo, 2009, p. 7; Merlo and Benekos, 2000). Legislators embraced various initiatives designed to “get tough” on youth and instituted statutes that made it easier to transfer youth to adult court. They also altered juvenile court proceedings by making them public and by allowing the media to publicize the names of youth. They changed the mission of the juvenile court from prevention and treatment to an emphasis on accountability, punishment, incapacitation, and deterrence (Benekos and Merlo, 2016). The deleterious effects were demonstrated not only in society’s perceptions of youth but also in the sanctions, including life without parole (LWOP), imposed on them.

Accompanying the social and political changes in the 1970s and 1980s, modifications occurred in juvenile justice that reflected a more retributive approach, a greater emphasis on free will rather than determinism, a movement away from treatment, and an increased reliance on harsher punishment. More weight was placed on accountability and incapacitation. The due process era that followed Gault was overshadowed by the increase in youth violence in the 1980s, when a new era of punitive stances emerged (Brooks and Roush, 2014; Mills, Dorn, and Hritz, 2015). Weiss (2013) views these developments as part of the third wave in juvenile justice reform (p. 3).

This punitive reaction to juvenile offending embodied a neoconservative ideology that highlighted deterrent and retributive sanctions. From portrayals of youth as “superpredators” (DiIulio, 1995) and dangerous offenders who should be punished with more adult-like and severe dispositions to legislative changes, which made it easier to transfer jurisdiction to adult criminal court, there was a sentiment that youth were dangerous criminals (see Chapter 2). The system’s policies transcended earlier commitments to wayward children and youth and replaced them with harsh sanctions and adult rhetoric. Part of the explanation for these drastic changes was a loss of faith in the juvenile justice system. An attitude prevailed that juvenile court was ineffective, that the new offenders were different, and that the court had somehow lost its way (Benekos, Merlo, and Puzzanchera, 2011).

The media influence on the public’s knowledge and framing of crime and juvenile justice issues helped fuel this transformation. With an emphasis on crack cocaine, gang violence, and school shootings, the image of youth who were violent criminals predominated. Television news focused on the most violent offenders and the incidence of homicide, despite the decrease in homicide arrests from 1990 to 1998 (Dorfman and Schiraldi, 2001). Court decisions and zero-tolerance policies in elementary and high schools provided evidence of a shift in perceptions of youth and limited discretion in the treatment of juvenile offenders.

In the decade of the 1990s, juvenile justice policies became increasingly politicized. Special legislative sessions drafted new laws or amended existing laws that focused on rational choice principles and individual decisions to commit crime. Although judicial waiver had been the primary method to determine whether youth should be retained in the juvenile system, changes in state statutes authorized that certain youth could be automatically excluded from the juvenile court if they engaged in specified offenses. As Adams and Addie noted, “Legislatures in nearly every state revised or rewrote their laws to broaden the scope of transfer-lowering age and/or offense thresholds, moving away from individual and toward categorical handling, and shifting authority from judges to prosecutors” (2010, p. 2). In 11 states, prosecutors were granted more control in determining jurisdictional authority. By amending or enacting existing concurrent jurisdiction statutes, legislators made it possible for prosecutors (alone) to decide which youth would be waived to adult court in specified cases (Adams and Addie, 2010, p. 2). These expanded transfer provisions and the changes that occurred are discussed and critiqued in Chapters 2 and 3.

The shifts were consistent with the cycle of juvenile justice that Bernard and Kurlychek (2010) explained when noting that policies that might be perceived as more lenient are replaced with harsher approaches and then revert back to less severe treatment of youth. During this same period, the country witnessed more youth incarcerated in adult facilities (Merlo and Benekos, 2009, p. 7). These developments are considered in Chapter 2.

When the 1990s concluded, it was clear that the juvenile justice system had undergone a substantial transformation during its 100-year history. Despite legislative changes, more punitive ideology, and media attention, there were signs of more promising preventive approaches emerging. According to Weiss (2013), this period is the beginning of the fourth wave of juvenile justice reform. It reflected a realization that children and youth were developmentally different from adults, and a more balanced approach emerged (pp. 3–4). The “quick fix” strategy to treat youth like mini-adults continued, but more reforms emerged later in the decade. Simultaneously, research demonstrated that prevention and early intervention strategies were successful, and there was evidence of a more balanced response in the public’s and politicians’ views toward youth (Merlo and Benekos, 2009).

The 21st Century and Juvenile Justice

The first decade of the new century (2000–2010) was characterized by a more balanced approach and an emphasis on recognizing that children and youth are different from adults. Specifically, Supreme Court decisions on the death penalty and LWOP sentences, along with research on trauma and maltreatment and evidence-based policies, signaled a movement toward prevention and treatment. Subsequently, other developments including the decrease in juvenile offending, fiscal constraints, evidence-based strategies, and a greater realization of the correlates of delinquency helped guide a different and more rehabilitative approach. Although various challenges persisted, there was an optimism that the system had become and will continue to be more treatment-oriented and research-focused in the future.

During the current decade, initiatives to raise the age when youth can be referred to adult court, to reduce the length of incarceration, and to understand the correlates of juvenile delinquency are gaining prominence. Additional research has been conducted on adolescent brain development, child maltreatment, and the cycle of violence, as well as on adopting a more trauma-informed approach in juvenile correctional settings. Specifically, recent strategies have been initiated that recognize delinquent youth may also have been victims or children exposed to violence. During the Obama administration, the federal government, specifically then–Attorney General Eric Holder, led the efforts with the Defending Childhood Initiative to prevent child abuse and exposure to violence, to intervene in the lives of child and youth victims, and to promote the Sanctuary Model to help treat the trauma that youth have experienced by providing an environment in which they feel safe.

These developments illustrate that the history of the juvenile justice system is complex. The 50-year commemoration of the Gault decision provides an opportunity for assessing how the system has progressed and how juvenile justice has evolved since the original court in 1899. The Gault case provided a blueprint for delinquency proceedings in which the justices stipulated the requisite due process protections to adjudicate a youth delinquent. The aftermath of Gault has not been uniform, and there remains a patchwork of juvenile procedures in 51 jurisdictions suggesting that some progress has been made, but more remains to be done. In order to understand this role, it is helpful to review the evolution of the juvenile court and the juvenile justice system. That history is what we first consider.

Historical Context and Trends: Early Attempts to Address Youthful Offending

Special Institutions and Proceedings

Prior to the creation of the first juvenile court, reformers sought to separate youthful offenders from the harsh environments of adult institutions. Their efforts resulted in the first private juvenile institution for children and youth. The Society for the Prevention of Pauperism, a philanthropic organization, opened the House of Refuge in New York in 1825 (Campbell and Gonzalez, 2007; Merlo, Benekos, and Champion, 2016). Other states followed this model and established their own institutions. Youth who were incorrigible, runaways, truants, and/or vagrants were considered the primary beneficiaries of these facilities. It was largely due to the efforts of these middle-and upper-class reformers, collectively referred to as the “child savers,” that youth were identified as needing special institutions and attention (Platt, 1969). While in the care and custody of a house of refuge, youth were to receive education and vocational training. However, these institutions bore little r...

Table of contents

• Cover
• Title
• Copyright
• CONTENTS
• List of Illustrations
• Preface
• Acknowledgments
• 1 Developing the Juvenile Justice System
• 2 Demonization of Youth and Politicization of Juvenile Justice
• 3 Court Decisions: From In re Gault to Montgomery v. Louisiana
• 4 From Superpredator to Traumatized Youth
• 5 Creating Sanctuary and Treating Trauma
• 6 Challenges in Reaffirming Juvenile Justice
• Epilogue
• Index