When Should Kids Go to Jail?

W 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 2010.

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 patriae. 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.

T 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 them."

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 500.

"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 York.

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 percent.

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 strategy.

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 punishment.

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.

O 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 youth.

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 happen.

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 prison.

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.