When Should Kids Go to Jail?

hile America's latest crime wave appears to be subsiding, the legitimate
fears it aroused in urban America leave a powerful political legacy. Along with
new police strategies and more prisons, legislators continue to call for harsher
treatment of juvenile offenders long granted special status because of a
historic belief in the diminished culpability of children and adolescents.
Nearly all states now permit the "waiver" of youngsters charged with serious
crimes to adult courts; in more than half, legislatures have specifically
excluded those charged with certain crimes from juvenile court jurisdiction. In
some cases the exclusions apply to children as young as 13. Legislation moving
forward in the current Congress would expand adult federal court jurisdiction
over offenders as young as 14 and give prosecutors, rather than judges, the
power to transfer a juvenile case to adult court.

Therein lies an important debate. The nation approaches the one hundredth
anniversary of the first juvenile court, established in Chicago by Progressive
Era reformers in 1899. It formally recognized that childhood should exist in the
eyes of the criminal law. Youth, Progressives believed, can partly excuse even
violent misbehavior and always permits hope for rehabilitation. Is that historic
commitment really obsolete?

The question remains germane even as juvenile crime trend lines turn down,
because demographics suggest a possible new crime wave. Scholars like James Alan
Fox of Northeastern University have predicted a "baby-boomerang" 20 percent
increase in the juvenile population and juvenile crime by 2005. The Justice
Department predicts a doubling of juvenile arrests for violent crime by

The Senate Judiciary Committee report on the new juvenile crime bill relies
heavily on such predictions to justify treating more juvenile offenders as
adults. Defenders of special treatment find themselves hampered by the history
of the juvenile court, whose usefulness has fallen into real question as it has
succumbed to an advanced identity crisis.

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The Illinois Juvenile Court Act of 1899,
which established the Chicago court, was based on the British idea of parens
. It granted the state the power to intervene on behalf of children
when their natural parents failed to provide care or supervision. "Jane Addams
and the dauntless women of Hull House," who established the new court, "strove
to develop a safe haven, a space to protect, to rehabilitate and to heal
children, a site of nurturance and guidance, understanding and compassion,"
writes William Ayers in a new book about the Chicago court. Judges serving in
the court were to receive social-science and child development training so that
they could craft sentences in the best interest of the "whole child."

The idea spread rapidly. Thirty-two states had set up juvenile courts or
probation services by 1910; by 1925, they existed in all but two states. The
belief that a court should take over the nurture and discipline of troubled
youth informed both philosophy and procedures. Sanford J. Fox, writing in an
issue of The Future of Children devoted to articles about the juvenile
court, recalls Judge Ben B. Lindsey, who served in Denver from 1901 to 1927.
"Children who came to the Denver court were 'his boys' and were seen by him as
fundamentally good human beings whose going astray was largely attributable to
their social and psychological environment," Fox writes. "According to Lindsey,
the role of the juvenile court judge was to strengthen the child's belief in
himself and make available to him all of the support and encouragement from
outside the court that the judge could harness on his behalf."

Today's juvenile courts continue the practice of dealing with cases of child
abuse and neglect, along with "status offenses"—truancy, running away from home,
unmanageability—as well as juvenile delinquency. A 1994 survey counted 1.9
million juvenile court filings (an increase of 59 percent since 1984); about
two-thirds were for juvenile delinquency.

In the 1960s, pressures from both the left and the right began to move
treatment of juveniles away from the original vision. In the early juvenile
courts, parens patriae meant substituting the benevolence of an
individual judge for the adult court's adversarial process, fact-finding by
juries of peers, guaranteed rights to counsel and cross examination, and
protection against self-incrimination. It also meant indeterminate
sentences—locking up youngsters in treatment until the adults in charge agreed that they
were rehabilitated, rather than for fixed periods of time. That was all well and
good so long as juvenile court judges and treatment administrators were
fair-minded, insightful, and caring. Where they weren't, juvenile offenders were
routinely exposed to gross miscarriages of justice.

The Supreme Court recognized the problem in the 1967 case of 15-year-old
Gerald Gault, who was charged with making an obscene phone call. A juvenile
court judge ordered him to training school for six years; in adult court, the
same case was worth a $50 fine or two months in jail.

In its ruling, the court rejected the whole idea of parens patriae and
concluded that traditional juvenile justice violated the 14th Amendment's
guarantee of due process. "Juvenile court history has again demonstrated that
unbridled discretion, however benevolently motivated, is frequently a poor
substitute for principle and procedure," the court wrote.

The Gault decision upheld a juvenile defendant's right to protection
against self-incrimination, to notice and counsel, and to question witnesses.
The result was to bring lawyers into juvenile court for both the prosecution and
defense and to force greater objectivity on the proceedings. While this curbed
some of the abuse, it also curbed the capacity of judges to deal with the
offender's broader problems. "Gault's insistence on procedural safeguards
in juvenile courts formalized the connection between a youth's crime and the
subsequent sanctions, and ironically may have legitimated more punitive
dispositions for young offenders," writes Barry Feld, Centennial Professor of
Law at the University of Minnesota.

hrough the 1970s and early 1980s, responding to pressure from a
crime-weary public, legislatures began pushing for punishment rather than
treatment, especially of youngsters who looked like "hard-core" juvenile career
criminals. They required juvenile courts to impose determinate or mandatory
minimum sentences based on the severity of the crime rather than the needs of
the offender. Some juvenile courts adopted the more punitive approach without
any prodding from a legislature.

Juveniles sentenced to confinement, meanwhile, all too often wound up in
training schools or detention centers that mocked the historic commitment to
therapy, education, and rehabilitation. Inquiries and lawsuits during the 1970s
and 1980s found juvenile inmates regularly subjected to systematic humiliation,
solitary confinement in squalid cells, beatings, and homosexual assaults.

All this occurred in the face of evidence that more constructive approaches
could work. In the early 1970s, the Massachusetts Department of Youth Services,
led by Jerome Miller, closed most of its training schools, reserving only a few
institutions for the worst offenders. The rest went to residential community-based
programs or home to their families while the state contracted with private
agencies for appropriate social services. An evaluation 15 years after the
training school closings found that half of 875 youngsters released from DYS
programs were rearrested within three years; during that time, 24 percent wound
up recommitted to DYS or incarcerated in adult prisons. That compared favorably
with other states. In California, for example, 70 percent of youngsters released
from reform schools were rearrested within only one year, and 60 percent were
reincarcerated three years after release.

To this day, Massachusetts remains the leading example of how reform might
help. A 1992 meta-analysis of 443 juvenile delinquency program evaluations lent
support to the Miller approach. The author, Mark Lipsey, found that programs
reduced the delinquency of their clients by 5 percent overall, from 50 percent
to 45 percent, compared with control groups. But he found higher effects for
programs that emphasized community-based rather than institutional treatments.
Even so, use of secure training schools and detention centers continued to
increase nationwide. The rate of confinement for juveniles rose from 241 per
100,000 to 353 per 100,000 between 1975 and 1987, according to one national
study. Another found that while the number of juveniles in the population
declined by 11 percent between 1979 and 1989, the number locked up in
institutions rose by 30 percent.

States also encouraged the shift of more juvenile cases to adult courts by
either lowering the age of adult court jurisdiction for crimes or giving judges
or prosecutors discretion to order waivers. The trend continued despite research
demonstrating that such measures were having less than the desired effect. Adult
courts are typically far more lenient with property offenders than are juvenile
courts. And in states where judges supervised transfer of juvenile cases to
adult courts, they tended to send up many more burglary and larceny cases than
robberies, rapes, and murders. The property offenders therefore benefited from
the "punishment gap," getting off with a year or two of lightly supervised
probation, the routine in adult court, when the juvenile judge might have
ordered them into a youth prison.


The juvenile court's identity crisis was therefore well advanced by the mid-1980s,
when crime rates spiked as crack dealers and gun dealers began aggressive
distribution of their products to willing markets of young people. Juvenile
delinquency cases not only increased; they involved more violence. Howard
Snyder, a researcher for the National Center for Juvenile Justice, found that
delinquency caseloads rose 23 percent between 1989 and 1993, nearly three times
the percentage increase in the juvenile population. Juvenile offenses against
the person (homicide, rape, robbery, assault) rose 52 percent, compared with a
15 percent increase for drug and property crimes. Weapons-law cases increased by
87 percent.

The statistics underlay a lurid popular perception. The news and
entertainment media discovered the drug issue in general and crack in particular
during the late 1980s, giving broad play to the teenage drug dealer turned
outlaw millionaire, an image of adolescent fantasy come horribly true. This only
deepened questions about the credibility of juvenile courts. Young thugs were
driving luxury cars, flaunting designer warm-ups and gold chains, arming
themselves with assault weapons and paying their mothers' rent. Did they suffer
from deprivation and a poor self-image? Were they really going to be helped by
fatherly judges and caring social workers? Wouldn't they, not to mention the
rest of us, be better served by a heavy dose of grown-up punishment?

The idea could drive even sober academics to feverish prose. James Q. Wilson,
an influential political scientist at the University of California at Los
Angeles, wrote of "innocent people being gunned down at random, without warning
and almost without motive, by youngsters who afterwards show us the blank,
unremorseful face of a seemingly feral, presocial being." William Bennett, with
John DiIulio and John Walters, describes "'superpredators'—radically impulsive,
brutally remorseless youngsters . . . who murder, assault, rape, rob,
burglarize, deal deadly drugs, join gun-toting gangs, and create serious
communal disorders. . . . [N]ot even mothers or grandmothers are sacred to

While such rhetoric rings powerful chimes with the public, should it drive
public policy? However legitimate, fear and loathing inspired by excesses of
some juvenile criminals at the height of the crack plague can inhibit careful
thinking about a problem whose practical and moral complexities demand more than
a turn to harsher punishments.

The majority of young people who break the law are not feral, presocial
predators. Though juvenile violence increased at a shocking rate during the late
1980s, the more than 2,000 homicides reported each year remain a tiny percentage
of all juvenile crime. Of the 1.4 million arrests referred to juvenile courts in
1992, 57 percent involved property offenses as the most serious charge, while 21
percent involved crimes against the person. There is real danger that
legislative nets cast to capture the "superpredators" will sweep in thousands of
lesser fry as well, at appalling social and financial cost.

Furthermore, whatever goals the move against special treatment might
accomplish, greater public safety does not appear to be one of them. A Florida
study published in 1996 matched 2,738 juvenile delinquents transferred to adult
courts with a control group that remained in the juvenile system. "By every
measure of recidivism employed, reoffending was greater among transfers than
among the matched controls," the researchers stated. A 1991 study compared
juveniles tried in New York adult courts with New Jersey youngsters whose cases
remained in juvenile court. It, too, found higher recidivism rates and prompter
new arrests for the New York youngsters.

An ethically sensible and potentially effective policy on juvenile crime
should include three elements: broader crime control, social work outside the
criminal courts, and a reconception of juvenile justice.

Crime control. By now the accumulating evidence documents
overwhelmingly that the burst of youth crime in the late 1980s was caused by the
rapid spread of drugs and guns. What to do about drugs remains uncertain. The
crack epidemic appears to be expiring more as a result of natural causes than of
smart policy, with saturated markets, aging addicts, and a skeptical new
generation of street kids. But guns, in this context, are worth discussing.

Franklin Zimring of the Earl Warren Legal Institute, Alfred Blumstein of
Carnegie Mellon University, and others have pointed out that guns account for
the entire recent increase in youth homicide. In a striking article published in
the Valparaiso University Law Review last spring, Zimring, a law
professor at the University of California at Berkeley, noted that the number of
reported killings committed with guns by youngsters between the ages of 10 and
17 increased sharply after 1984, from about 500 to more than 1,000. The number
of non-gun homicides remained stable through those years, at slightly fewer than

"If there were a large group of 'new, more violent juvenile offenders,' that
was the proximate cause of explosive increases in homicide," Zimring writes,
"one would expect the increase in killing to be spread broadly across different
weapon categories." Instead, it appears that "a change in hardware rather than a
change in software was the principal cause of higher youth homicide." In that
light, the most effective response looks like aggressive gun control focused on
juveniles, backed up by the sort of innovative policing now credited with
reducing juvenile gun use and homicides in Kansas City, Boston, and New

Social work. Beyond programs designed to deal with youngsters after
arrest, students of juvenile crime remain fascinated with the idea of
intervening in the lives of children and teenagers "at risk" of delinquency in
hopes of averting criminal behavior before it starts. Research documents some
success. The most famous study was of the Perry Preschool, in Ypsilanti,
Michigan, which provided two years of enriched schooling and weekly home visits
to small children from poor minority families. By the time the kids had turned
27, half as many had been arrested as a control group that did not benefit from
the enriched classes.

Other programs replicate the effect. A Syracuse University effort enrolled
108 low-income families, mostly headed by young single mothers, for five years
of day care for their children along with parenting training beginning during
pregnancy. Ten years after the families completed the program, only 6 percent of
the children had been referred to probation, compared with 22 percent of a
matched control group. Another New York study found that providing nurses for
regular visits to young mothers at home with their infants greatly reduced
instances of child abuse and neglect. A Houston program that enrolled families
with small children from Mexican-American barrios found that a combination of
home visits and day care reduced the children's aggressive behavior.

In 1996, a team of researchers from RAND led by Peter Greenwood reviewed
seven such studies and calculated that day care/home-visit programs could reduce
by 24 percent the number of crimes the client children could be expected to
commit. The group also reviewed programs that give parents special training to
deal with children who have begun to behave disruptively in school and at home;
the training was found to reduce the youngsters' eventual juvenile criminality
by 29 percent.

The RAND group also examined the Ford Foundation's Quantum Opportunity
Program, which will provide an "at-risk" youngster with cash and scholarship
incentives averaging $3,130 per year to stay in high school and graduate. That
simple approach might reduce the criminality of its clients by an astonishing 56

The RAND researchers attempted to estimate the cost-effectiveness of such
approaches in comparison with increased incarceration resulting from
California's new Three Strikes Law. They found that if fully applied across the
state, two of the social work approaches, parent training and graduation
incentives, were more cost-effective; taken together, they could reduce crime by
22 percent at a cost of about $900 million per year. Greenwood and others had
previously calculated that the Three Strikes Law might achieve a similarly
defined crime reduction of 21 percent at a cost of $5.5 billion per year.

These results should be regarded with caution. The RAND study is a self-consciously
artificial exercise designed to provoke pointed comparison rather
than nail down a policy choice. It is based on necessarily speculative
assumptions about how the effectiveness of well-resourced and well-managed pilot
programs will "decay" as they are massively expanded. It also attempts to
estimate the number of crimes children might commit over the course of their
lives if they don't benefit from the programs, an imponderable calculation. Yet
however speculative, the results remain tantalizing; they certainly warrant
close attention to preventative social work as part of a juvenile crime

Juvenile justice. Even as get-tough rhetoric encourages politicians to
press for diminishing jurisdiction of the juvenile court or abolishing it
entirely, other issues encourage some thoughtful academics in the same
direction. Barry Feld, in a forthcoming paper, reviews legal decisions that
imposed adult due process on juvenile courts, new laws that force more juvenile
cases into adult courts, and the shift in attitudes away from treatment toward

Legislative, judicial and administrative changes within the
past few decades have transformed the juvenile court from a nominally
rehabilitative social welfare agency into a scaled down, second-class criminal
court for young people that provides neither therapy nor justice. . . . No
compelling reasons remain to maintain a punitive juvenile court separate from an
adult criminal court.

He calls for integration of juvenile and
adult courts while "formally recogniz[ing] youthfulness as a mitigating factor
in sentencing." Pointing out that the law has long recognized diminished
responsibility of young people who break the law, he proposes a fractional
"youth discount." "A 14-year-old offender might receive, for example, 25 percent
of the adult penalty, a 16-year-old defendant, 50 percent, and an 18-year-old
adult the full penalty, as is presently the case."

The appealing simplicity of such an idea, however, may be deceptive. Feld
himself acknowledges that implementing it sensibly would require many states to
get rid of mandatory minimum sentences to which legislators point with pride,
and to increase judges' discretion that legislators have fought for years to
curb. For youth discounts to work, Feld writes:

the adult sentencing scheme
itself must be defensible in terms of equality, equity, desert, and
proportionality. A sentencing scheme which simply attempts to apply
idiosyncratically "youth discounts" to the flawed indeterminate sentencing
structures . . . runs the risk simply of reproducing all of the existing
inequalities and inconsistencies.

ther scholars continue to
believe in the need for a separate court that recognizes the possibility of
rehabilitation for youthful offenders. They have been encouraged by recent
research suggesting, contrary to decades of pessimistic findings, that
rehabilitative programs can make a difference to the lives of delinquent

They point to a 1990 meta-analysis that weighed 80 evaluations of
rehabilitation programs, distinguishing between those that took care to match
services with the needs and learning styles of the offenders and those that did
not. The "appropriate" programs were found to reduce recidivism by as much as 50
percent. And Lipsey's 1992 meta-analysis, which found positive effects for
community-based, rather than institutional, programs, also affirmed the value of
those that took behavioral, skill-oriented, or multi-modal approaches.

Such studies provide practical hope to shore up the moral case: so long as
rehabilitative programs do not expose the public to more crime than prison does,
they are worth pursuing. They create positive experiences for youngsters coming
out of chaotic social environments (at lower financial cost than prison), and
they send a broad message about a society's willingness to help young people in
trouble. It's a valid argument, and it looks all the better with reason to
believe continued experimentation with such programs might still produce real
cuts in recidivism.


But if there should be a juvenile court, how should it look? To some the best
answer is: about the way it looks now, but with more resources, better people,
and uniform standards nationwide. "Although there have been significant changes
in the mission and function of the juvenile court since 1899, [the] basic
differences between children and adults remain and continue to support the need
for a specialized court," concludes a group assembled by the Center for the
Future of Children.

The group made a dozen recommendations that included elevation of all
juvenile courts to the highest level of general jurisdiction, improved training
for juvenile court judges, a requirement that judges serve at least two to three
years, and greater use of alternative dispute resolution. The group also called
for guaranteed legal representation, transfer of juveniles to adult court only
on the basis of a judicial hearing, and a greater variety of sanctions.

Mark Moore, a professor of criminal justice policy and management at
Harvard's Kennedy School of Government, offers a more innovative and
sophisticated idea. He recognizes the need for the transfer of some juvenile
cases to adult courts if they show "unusual maturity, acted alone, or persisted
in committing crimes."

For the rest, he proposes a court whose goal would be "to help organize the
increasingly complex task of child rearing by intervening in situations where
breakdowns in child-rearing capacities have occurred." It would do this in the
manner of a bankruptcy court faced with a failing business:

It can decide to "liquidate" the existing arrangements and
transfer the child to the care and custody of someone other than the current
caretakers. Or, the court can seek to "restructure" the enterprise, keeping the
family together but insisting that caretakers live up to their duties and
overseeing the provision of publicly available services that would allow them to
do so.

What would this mean for the youngster picked
up for a first-offense burglary who turns out to have dropped out of school, is
running with a street gang, and has developed a taste for drugs? Under the
current system, transfer of such a case to adult court would result in a mild
penalty—a year or so of sporadic supervision by an overworked probation officer.
The current juvenile court might supplement that with an order to attend
Narcotics Anonymous meetings and go back to school, which might or might not

Moore's court would call in members of the offender's immediate family or
others prepared to provide supervision and order them to make sure the youngster
goes to school and a drug treatment program, stays away from his gang friends,
and otherwise stays out of trouble. A social worker or probation officer would
serve as a "special master" responsible for making sure the judge's orders are
followed. Should the caretakers fail to meet their obligation, the judge might
sanction them, remove the child to a residential program, or both. With further
offenses, the delinquent might finally be ordered to juvenile jail or

Moore points out that such a court could deal more logically than current
juvenile courts with the status offenses like truancy and running away from home
that may be precursors to criminal behavior. It would also keep jurisdiction
over child abuse and neglect cases, as well it should, given research
documenting the propensity of their victims to act out violently later on.

All this would, of course, require more resources for juvenile justice and a
sense of unity on the value of such an approach. Both are problematic in the
ongoing political climate. But Moore's basic goal is hard to gainsay: he would
hold "children, and those who care for children, accountable for their actions
in their joint efforts to move children from the status of defenseless
barbarians to resourceful citizens."

Is that really possible without threatening public safety? "One can err by
allowing a child sufficient freedom and engagement with the community to put
himself or herself and others at risk," Moore says. But it's also an error to
keep a delinquent so locked up and isolated "that he or she never has the
opportunity to learn how to become integrated into the community." The existing
setup, he says, penalizes public officials "for the first kind of error and
tolerate[s] the second kind of error. Yet it is the second kind of error that is
arguably the most expensive."

That aptly summarizes the whole discussion. It is still possible to imagine
ways juvenile delinquents might be sanctioned and supervised effectively as
juveniles, not adults, without removing them from the community. The drift away
from historical juvenile justice remains premature.

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