Juvenile Justice in Britain and the United States

The Balance of Needs and Rights

Phyllida Parsloe

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9781138921511
• eBook ISBN: 9781351561457
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This study, first published in 1978, compares the ways in which the systems in England, Scotland and the United States balance the necessity of meeting children's needs against the protection of their rights. Three approaches to juvenile justice are identified; the criminal justice, the welfare, and the community approach. This book will be of interest to students of sociology, criminology and social work.

Chapter one
Juvenile justice systems

In Britain and the United States juvenile justice systems have recently attracted public, political and scholarly attention. In the United States the attention has been largely critical and many people consider that the system has failed.(1) In Britain the emphasis was first upon restructuring,(2) a process which found legislative expression in the Social Work (Scotland) Act(3) in 1968 and the Children and Young Persons Act 1969,(4) in England.* Now there is growing discontent with the new structures and, in particular, with what is seen as the powerlessness of juvenile courts and children’s Hearings.

The demands made on the systems are similar on both sides of the Atlantic but in some ways their recent development has been in opposite directions. In the United States, where juvenile courts have no criminal jurisdiction, there is movement away from the informality, which often amounted to procedural sloppiness and arbitrariness, towards a more legalistic approach. The procedures for the protection of adults charged with criminal offences have been extended to juveniles facing the possibility of a finding of delinquency. A child alleged to be a delinquent now has almost the same right to trial by due process of law as has an adult charged with an offence. In Britain the trend has been in the opposite direction. Starting from a much more legalistic base, the move has been to extend the civil category of children in need of care and reduce the number of children who are charged with a criminal offence. In theory at least the aim in England was to treat children according to their underlying needs and not in response to specific acts. Scotland went further and took decisions concerning the disposition of juveniles away from the courts, making them the responsibility of the newly created children’s hearings.(5)

These changes suggest a difference between Britain and the United States, but, while there is a difference in the direction of their development, the result is that the juvenile justice systems, particularly in the United States and England, are becoming more alike. English juvenile courts were, and still are, courts with a criminal jurisdiction, but over the years they have gradually incorporated ideas drawn from a welfare approach. The juvenile courts in the United States were established as civil courts offering a gateway for children to welfare services. Only gradually has their law-enforcement function been acknowledged. Each country is now moving towards a central point where ideas drawn from a welfare approach and those from criminal justice are finely balanced.

England and Wales, Scotland and the United States also share an uncertainty about their ability to control or to help troubled or troublesome children and a growing awareness of the unintended effects of intervention into children’s lives. It is recognised that juvenile courts, and even the new Scottish children’s hearings, may be stigmatising rather than helping children. This failure of confidence is characteristic of the 1960s and 1970s in relation not only to juvenile justice but to other social problems. Recognition of the stigmatising effects of treatment is perhaps the most important contribution our century has made to an understanding of juvenile justice. It has led to a concern to keep children out of the court and hearing system. All three countries are placing legislative and financial emphasis upon what in the United States is known as ‘diverting children from the juvenile courts’ and what in Britain is called ‘prevention’. Government and voluntary agencies are charged with responsibility to provide help for young people and their families outside the court system. The juvenile court and the children’s hearings are to be places of last resort, and compulsion is to be used only when no other way of meeting a child’s needs seems possible. This is a considerable change, particularly in the United States where, as Paulsen explains, the reformers who established the first juvenile court saw it(6):

as a gateway through which children would pass into a rich supermarket of salvation services: a probation officer here, a medical doctor there, a dentist there, a psychiatrist here, a psychologist there. The court would be the means whereby the community brought services to bear in respect of youngsters who need them.

THE FUNCTIONS OF THE JUVENILE JUSTICE SYSTEM

To understand the present trends in juvenile justice it is necessary to consider what functions the system fulfils for society and what different sets of ideas meet and influence the decisions and actions of the people in the systems.

The juvenile justice system is one of a number of institutions which society has developed for the purpose of socialising and controlling children, and particularly lowerclass city children. All societies have developed some such institutions, since the future of society and the culture it develops depend upon socialisation processes. Most have placed a primary responsibility for socialisation upon the family unit but, where the family has proved inadequate, other institutions have been developed to supplement, support or supplant the parents. The twentieth century has seen in the US and Britain the development of this special agent of socialisation and control: the juvenile court.

Theoretically there are many forms which a system designed to handle troublesome behaviour in children might take. The form depends upon the way the behaviour is defined. Such behaviour can be seen as part of growing-up, and so a matter for internal management by the family, or as a wider educational matter and therefore the concern and responsibility of the schools. It may be regarded as a social problem to be dealt with by voluntary social service agencies or welfare departments of the local or national government. In some countries it can be seen as behaviour directed against the State and therefore a political matter to be corrected by local political groups. Other possibilities are to regard the behaviour as a moral matter and thus the concern of religious bodies or as a manifestation of illness, either mental or physical, and therefore a medical matter. In certain circumstances each of these definitions is used and also the corrective measures which the definition entails, but the master definition in our society is that of law breaker. The ultimate and residual responsibility for controlling troublesome behaviour is therefore vested in a court.

All these choices may in theory have been open to the nineteenth-century reformers, but looking back on history one can see how much choice was limited by social pressures and preceding events. Juvenile courts did not appear out of a clear blue sky one day in Illinois in 1898. They evolved gradually and inevitably from earlier developments in criminal law and welfare provisions. It would have been impossible, then at least, for children who committed offences to be dealt with outside some court structure. Various social pressures combined to ensure that a court was the institution. A strong belief in punishment and deterrence as necessary and successful was as characteristic of the nineteenth as of all previous centuries. Such beliefs led naturally to a definition of troublesome behaviour as bad, unlawful, and therefore requiring punishment, which is a prerogative of parents and courts. There was also a belief that an offender had a right to a fair hearing before being judged and punished, perhaps by removal from the community. This belief contributed to the choice of a court and, in Britain more than in the United States, had a strong influence on the form of procedure inside the court.

Other pressures contributed to the establishment of courts which were very unlike any existing court and ensured that the juvenile court had a complex function. Concern for the children as children had grown during the nineteenth century and their special needs were beginning to be acknowledged. Such concern was based in part upon humanitarian ideas, but also upon a belief that poverty and criminality in adults were best prevented by segregating, educating and correcting children who showed the first signs of such conditions. By the end of the century these ideas were firmly backed by legislation, and thus courts for children were required to give expression to humanitarian as well as punitive beliefs. They were also to express society’s belief in education. The reformers had a profound faith in the strength of educative measures and in the reformative effect of family life. The juvenile court, particularly in the United States, was to provide a gateway to a changed environment, and the result would be a changed child. In 1900 Freud had not yet loosed on the world the idea of a personal internal world resistant to external manipulation, nor had society grasped the problems of managing a spoiled identity, which concern us today. So the reformers gave the juvenile court the task of changing children, with more belief in the possibilities of success than we might have now.

These trends alone would have ensured that the juvenile justice system had multiple functions and aims. From the beginning it was concerned both with protecting society and with serving the best interests of the child, with meeting the child’s needs while also protecting his rights, although in the United States the concept of a child’s right differed from that held today.(7) The complexity was compounded because society is concerned with controlling behaviour in children which goes far beyond the commission of criminal acts. In addition to jurisdiction over incorrigible children, beggars and vagrants, which the juvenile codes took over from the Poor Laws, new legislation in both countries gave the courts jurisdiction over children who truant and were promiscuous, juvenile drinkers and curfew breakers, the sexually assaulted and the physically abused;(8) all these in addition to those children who committed crimes. Besides extending the State’s control, this had important implications for the future of the juvenile court, since it ensured its welfare function. Without the presence of these children the juvenile court might have developed more clearly as an arm of criminal justice. The inclusion of non-offenders(9) prevented this and provided for the children who had committed, what in an adult is a crime, some of the attitudes and actions associated with a welfare system. The corollary is that, in so far as the juvenile court is also an agent of criminal justice, it functions as such towards children who are non-offenders as well as towards those who are offenders, and some of the stigma of criminality attaches to these non-offenders as well as to those who commit crimes.

HOW CHILDREN’S BEHAVIOUR IS CLASSIFIED

The types of behaviour which bring children within the jurisdiction of the juvenile justice system are similar in Britain and the United States, although there is some difference in the legal groupings of these types. The behaviour and needs of children which these societies see as the concern of their juvenile justice system are:

1 Acts which, if committed by an adult, would be criminal acts. These acts are specified not in juvenile codes but in general criminal legislation.

2 Acts which are not illegal for adults but which society has made illegal for children and young persons. The most important are probably sexual acts between persons below legislatively established age limits. Also in this group are failure to attend school and entering premises where alcohol is sold. In some parts of the United States being out after curfew(10) or drinking alcohol(11) come into this category.

3 Being beyond the control of parents or guardians. This is phrased in various ways - being unruly, incorrigible or ungovernable - but implies a breakdown of the usual family controls on behaviour.

4 Children who are physically or sexually abused or neglected or treated in ways likely to impair their health.

5 Children whose emotional development is neglected or impaired, including those who are in moral danger.

6 Children to whom 4 or 5 might happen because they live in a home where other children have been found to have suffered in those ways.

7 Children who are deserted, deprived or abandoned. The judicial grouping of these acts and needs is indicated in Table 1.1. Each State of the United States has its own law relating to children, but most States use similar categories, although the actual word to describe them may vary.

TABLE 1.1

	Classification
	in US	in England	in Scotland
1 Acts which if committed by adults are crimes	Delinquent	In need of care or control. If over 12 can be found to have committed an offence	In need of compulsory measures of care if under 16 years
2 Acts illegal only if committed by children	Delinquent or persons in need of supervision	In need of care or control	In need of compulsory measures of care if under 16 years
3 Incorrigible	Delinquent or persons in need of supervision	In need of care or control	In need of compulsory measures of care if under 16 years
A Physically or & emotionally 5 neglected	Neglected	In need of care or control	In need of compulsory measures of care if under 16 years
6 Potentially neglected	No such category included under neglect	In need of care or control	In need of compulsory measures of care if under 16 years
7 Deserted, deprived or abandoned	Dependent	Usually dealt with outside court system, but could be brought as in need of care or control.	Usually dealt with outside court system, but could be in need of compulsory measures of care if under 16

The major difference is that the term delinquent in the United States has a legal meaning and can (but does not always) cover criminal acts, incorrigibility and acts illegal only for children. In Britain, when it is used, it does not describe a legal category and is usually taken to refer only to those children who have committed acts which are criminal if committed by an adult. The British category of ‘in need of care’ is wider than the United States category of delinquent (or delinquent plus persons in need of supervision), because it includes neglected children, who form a separate group in many United States juvenile codes, and also includes a category of potentially neglected children, which is not common in the United States. Finally, the British system, with a much more comprehensive local government child care system outside the courts, has no category of dependent child, although the local authority can take action to retain children already in its care.(12)

Treatment of neglected and dependent children in the United States raises many of the same problems, in terms of their rights and needs, as does the treatment of those in the other categories, but much less is known about the way the law operates towards them. Perhaps they will soon come under the spotlight of public concern, and it is probable that they need to do so. We, however, will concentrate on those aspects of juvenile justice which relate to children who fall into categories 1, 2 and 3. These children are those who are said to have acted in ways which contravene society’s view of what is proper behaviour in children. We will not be concerned with the other aspect of the juvenile courts’ work, which relates to children who are victims of ill-treatment by others.

APPROACHES TO JUVENILE JUSTICE

The reader will already be aware that different ideas are operating in the juvenile justice systems, and it is to these ideas that we now turn. There is a growing interest amongst sociologists and political scientists in the sets or patterns of ideas which people hold about social problems. These sets influence what comes to be defined as a social problem, what laws are passed ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Preface
• 1 Juvenile justice systems
• 2 United States: historical background to the juvenile court–before 1900
• 3 United States: from the first juvenile court to the present
• 4 United States: the present juvenile justice system
• 5 Britain: the events leading to the 1908 Children Act
• 6 England and Wales: the present law
• 7 Scotland: the present law
• 8 The balance in the statutes
• 9 The people who run the juvenile justice system
• 10 Recognising and controlling discretion
• 11 Continuing concerns and new forms of intervention
• References
• Bibliography