Listen to thisAs we celebrate the first 100 years of juvenile courts in the United States this year, it is impossible to avoid peeking into the next century, especially since we stand on a threshold just as did Jane Addams, Julia Lathrop, and the leaders of the Chicago Bar Association who gave birth to the court so long ago. It is appropriate now, after looking back in the last two columns, to stop and take stock of where we should go from here. Overall, the juvenile or family court of the 21st century should not be fundamentally different in design and jurisdiction from the court as it has been throughout most of the 20th century. But it should receive significantly more of society's attention and resources.
Prevention
The beginning point for any discussion of dreams for the 21st Century
must be on putting greater emphasis on prevention and early
intervention. We must try and deal with the causes of crime and nip
delinquency in the bud. To do so we must avoid trying to isolate a
single cause of delinquent activity. There is a growing realization that
the causes of delinquency are varied and multi-systemic, and they cannot
be easily isolated and addressed in a vacuum. High-risk juveniles and
their families must receive early intervention services that are
centered on the family and the community. Head Start must be made
available to all children who are eligible, and programs like Hawaii's
Healthy Start, which since its initiation has greatly reduced the
incidence of abuse and neglect in at-risk families, must be replicated
around the country. Recent studies show a direct link between early
abuse and later violence against others.
Ratify U.N. Convention on Rights of the
Child
The American Bar Association is on the record as supporting the United
States' ratification of the U.N. Convention on the Rights of the Child.
Except for Somalia, the convention has been ratified by every other
nation in the world-191 of them. The United States has signed the
convention, but its ratification would recognize and reassert the
importance of childhood in American society. Most of the principles in
the convention are based on American concepts of children's rights as
embodied in Supreme Court decisions and state law, and we should end our
isolation from the rest of the world on this important human rights
issue.
Mission of the court
The mission of the juvenile or family court in addressing delinquency
should be defined by carefully balancing competing, yet complementary
goals-the welfare of children and the protection of the community. Since
youths are developmentally different from each other, the correction of
juvenile delinquents through services that are expressly designed to
treat their behaviors and problems in an individualized fashion is best
capable of preventing future offenses. Because they are developmentally
and socially different from adults, they are more likely to be
rehabilitated by carefully designed and tested treatment programs than
by a purely punishment-based sanction system. The child protection focus
of the court must receive even more attention than it has now. The court
should work to integrate child welfare and delinquency services in the
community and in the juvenile justice system.
Unified family courts
States should establish courts based on the unified family court model
that places all family-based legal issues in a single court in an effort
to deal holistically with the family and all its problems. Many youths
before the court come from dysfunctional families where a multitude of
legal issues are present that are often related to each other. A single
court can deal with this variety of problems more creatively and in a
more comprehensive fashion. It makes little sense to deal with
fragmented families in a legal system that is similarly fragmented.
Selecting and training personnel
Judges and other personnel elected or selected for service in the
juvenile or family court should be chosen for their interest in legal
issues involving children and youth and the family, and they should be
given the specialized training to enable them to perform their tasks
most effectively. This training should be comprehensive and
multi-disciplinary. All the other participants in the system also should
be trained and adequately compensated-police, intake officers, probation
officers, attorneys, aftercare workers, correctional and other program
personnel, and child welfare workers.
Court authority and jurisdiction
For juvenile or family courts to function effectively, they should have
the jurisdiction to order the cooperation of other public agencies and
institutions in delivering specific services and treatment to the
children and families before the court. The judge should be able to hold
agencies as accountable as the youth before the court. Holding juveniles
accountable for their behaviors is often unsuccessful if their family
members are beyond the reach of the court. Much delinquent behavior
results from, or is contributed to, by the dynamics of the particular
family in which the juvenile lives and has been raised. Judges should be
able to order family members into treatment and counseling along with
the juvenile.
Using specialized courts
"Teen" or “youth courts" exist in a growing number of states and these
courts utilize juveniles in various court roles, such as members of
juries, in prosecutorial or defense roles, or as judges or advisory
juries in fashioning appropriate dispositions or, in some instances,
determining the guilt of juvenile offenders. Similarly, a growing number
of jurisdictions are establishing drug, gun, or truancy courts to deal
creatively with these special problems. The juvenile and family court
should encourage such innovation, coupled with careful monitoring and
evaluation of the effectiveness of these alternatives. However, we must
be careful to avoid having these discrete functions undercut the
operation of the court. Spinning off these popular options could leave
the court itself with only the most intractable cases and difficult
juveniles.
Alternative dispute resolution
Many courts have used mediation, arbitration, conferencing, and other
alternative dispute resolution techniques effectively to help resolve
status offense and other nonviolent offense cases. These services can
help to conserve scarce resources and facilitate reconciliation between
offenders and victims, and we should determine if these techniques are
also effective in more serious matters.
Separate facilities and alternatives to
detention
One of the original goals for the juvenile court in its inception was to
get juveniles out of adult jails and facilities. Juveniles should be
detained, where absolutely necessary for the protection of society or
the assurance of court appearance, only in separate juvenile detention
facilities. Effective risk assessment tools must be utilized to
determine who should be detained.
Right to effective counsel
Effective, committed, and knowledgeable lawyers for juveniles should be
made available to advocate for each child at every stage of the
proceedings. The ultimate goal of due process and fair play is best
attained when both sides in delinquency cases are represented by trained
and experienced lawyers. The court should have adequate prosecutorial
and agency legal services available to it at all times, and all lawyers
assigned to the court should be well trained in the nature of juvenile
proceedings and the mission of the juvenile or family court. The lawyers
serving the court should not be solely the youngest and newest members
of the profession.
Transfer to adult courts
In most situations involving delinquency, juveniles can be effectively
tried and handled in the juvenile justice system. In some exceptional
cases, involving older, habitual, or violent offenders, public safety
may dictate handling them in the adult criminal system. Such a decision
should be made by a judge on an individualized basis, subject to
specific criteria set forth in law. With the benefit of knowledge and
information about the offender, juvenile and family court judges are
best able to select the most serious, violent, and chronic juvenile
offenders for transfer after hearings in open court. For those juveniles
who are tried as adults, we must still try to fashion programs that
rehabilitate them and do not brutalize them, for most of them will
return to live among us some day.
Protecting juveniles in court hearings
A juvenile should not be permitted to waive constitutionally protected
rights without a full and careful inquiry by the court into whether such
waiver is intelligent, knowing, and voluntary. The right to counsel
should not be waived in any case, and any waiver of other rights should
be accompanied by a meaningful consultation with an attorney and a
guardian ad litem, if necessary or appropriate.
Open hearings
Open hearings in the guilt or innocence phase of delinquency cases help
to protect both the public's right to know what is going on in the legal
system and the child by allowing for greater accountability for the
court. Open hearings help to protect the juvenile from arbitrary
proceedings, to educate the public, and to help generate community
support. Hearings should be closed only when absolutely necessary to
protect a child victim or some other vulnerable participant.
Victim participation
Victims have long been shut out of meaningful participation in, and
access to, juvenile court proceedings. This participation should be
allowed more widely, and the juvenile justice process should do a better
job of advising victims of the times and places of hearings and of
providing victims with meaningful services to aid in the healing
process.
Continuum of graduated sanctions
Juvenile and family courts should have available a wide range of options
for sanctioning juveniles found guilty of delinquent behavior. These
sanctions should range at least from community service to supervised
probation to correctional incarceration. The options provided should
have well-designed service protocols, a range of lengths, effective
monitoring of the delivery of services, and careful tailoring of the
services to fit a variety of youths. Aftercare must be an essential
component of any institutional placement, and those dispositions used
should be ones that have proven their ability to reduce recidivism after
careful evaluation.
Minority, female, and disabled youth
Minority offenders are still over-represented in the juvenile justice
system, especially in secure institutional settings, and the court and
its supporting services and agencies should focus more on the unique and
particular needs of these youth. More racially and culturally sensitive,
thus more effective, programs and services should be developed to serve
these minority youth within the various stages of the system. Such
systemic efforts must confront the many family, school, community, law
enforcement, detention, court, and correctional influences that
contribute to such over-representation and to disproportionate minority
confinement. Similarly, girls are frequently unable to access
gender-specific services, and that is a real problem as more females are
getting involved in serious behaviors. Children with learning
disabilities, attention deficit disorders, and other disabilities are
also at high risk in the juvenile justice system and lack essential
services; their needs must be met as well.
Mental health problems and substance abusers
The juvenile justice system increasingly is becoming the repository of
last resort for children with mental health and mental retardation
needs. Recent studies show that high percentages of young people in
correctional facilities are suffering from serious emotional
disturbances. Often, the lack of community-based services for such youth
results in court referrals and inappropriate institutional placements.
Many youth referred to the juvenile justice system are alcohol or drug
dependent, or on their way to becoming such. More services need to be
provided to the system for addressing these problems in an effective and
meaningful fashion, especially within the community.
Coordinate community services and resources
Community services and resources are frequently uncoordinated,
fragmented, and even working at cross-purposes. The court and other
institutions should strive to achieve greater collaboration and
coordination of services and resources. Better community services will
often obviate the need for residential and institutional placements, and
community-based services are often more effective and less costly. The
juvenile or family court can fill a leadership role in stimulating the
development of local community planning teams to coordinate the services
and resources across the boundaries of specialized public and private
agencies.
Death penalty inappropriate
The ABA is committed to the proposition that the death penalty should
not be utilized for crimes committed by minors under the age of 18 at
the time of the offense. The United States is one of fewer than a
handful of nations where juveniles can be executed, and the other
countries that have carried out the practice are not ones with which
Americans normally identify-Bangladesh, Iran, Iraq, Nigeria, and Yemen.
None of the other nations have executed a juvenile recently. In recent
years the number of juveniles in the United States on death row has
climbed significantly; currently there are 70, and these individuals are
beginning to be executed in growing numbers.
Conclusion
Horace Mann, the father of public education in America, and a lawyer,
was once asked to speak at the dedication of a juvenile reformatory in
Massachusetts. During his speech he remarked that the thousands of
dollars spent for its construction would be money well spent if just one
child were saved by virtue of its existence. After the speech a friend
complimented him on his speech, but chided him for his extravagant
cost-benefit analysis. “Horace," he said, “I know you were saying that
for dramatic effect, but you can't possibly be serious that all this
money would be worthwhile if just one child were made better." Mann
replied quickly, “what if that child were your child?"
We must begin as a society to treat all children as if they were ours, and not simply fear them and demonize them and lock them up or throw them away.
1. The Juvenile Court in the 21st Century. Juvenile Justice Vol. 14, No. 3, Fall 99
