Robert E. Shepherd, Jr.
The author is a professor of law at the University of Richmond's T.C. Williams School of Law in Richmond, Virginia, and a contributing editor to Criminal Justice magazine. He examines a number of principles which should continue to impact on the juvenile justice system into the new millennium.
As 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.
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
The American Bar Association is on the record as supporting the United States's 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
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 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.
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.
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, Num. 3, Fall 99
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