Handbook of Children in the Legal System

Ginger C. Calloway, S. Margaret Lee, Ginger C. Calloway, S. Margaret Lee

• Publisher: Routledge
• Year: 2021
• Print ISBN:
  9780367027773
• eBook ISBN:
  9780429674204
• Topic: Law
• Subtopic: Forensic Psychology
• Index: Law

This handbook brings together the relevant literature on children and their developmental characteristics, the legal venues in which they may appear, and the systemic issues practitioners must consider to provide a thorough guide to working with children in the legal system.

Featuring contributions from leading mental health and legal experts, chapters start with an overview and history of the juvenile justice system along with discussion of critical developmental areas imperative to consider for work with children, and idiosyncratic issues that arise. The book ends with a case presentation section that illustrates the varied roles and venues in which children appear in the legal system. An extended bibliography provides additional resources and literature to investigate specific topics in greater length.

This accessible and useable guide is designed to appeal to a broad range of people encountering children in the legal system, including social workers, psychologists, psychiatrists, attorneys, and judges. It will also benefit professions such as law enforcement as well as probation officers, child protective workers, school personnel, and medical personnel.

Part One

Overview

Section I

Overview of Juvenile Justice System

1 The Push-Me-Pull-You of Juvenile Justice

Mary C. Wilson

DOI: 10.4324/9780429397806-2

Part One: The Juvenile Delinquency Court Dichotomy

Early Treatment of Children

In early common law brought to the colonies from England, children who committed crimes were generally brought to the same courts as adults. Children under 7 years of age were presumed to be incompetent to stand trial so were not charged. Children between 7 and 13 where charged and, if it appeared to the court that the child could discern the difference between good and evil, the child could be found guilty. All children 14 and older were tried as adults. By law, children had no inherent rights. They were deemed to be chattel, owned by their father who had a possessory interest in the child's labor.

Judges in criminal courts understood that children sent to adult prisons would just become better criminals, so a system arose of placements for these delinquent youth to house them away from adults. In 1825, New York opened the first House of Refuge as a place to send children convicted of crimes. However, not all children were spared from adult prison. Only if the court found that the child was “reformable” would they be sent to one of these placements for rehabilitation and education. These “reform schools” spread and by the mid 1800s, many states had a House of Refuge, where courts sent children not only found guilty of crimes but also simply for being poor. While some states maintained separate facilities for youth convicted of crimes than those children simply found to be “vagrants” or “incorrigible,” many states housed them all in the same reform schools. Courts saw themselves as protecting poor children from a life of idleness by placing them in alms houses where they were supposed to be fed, housed, given some education and eventually placed in jobs.

In 1839, Pennsylvania had the first known case to invoke the doctrine of parens patriae in a court matter. In Ex parte Crouse (1839), the child had been brought to court originally for being beyond her mother's control, not for any criminal offense, and was sent to Philadelphia's House of Refuge. When the father filed a writ of habeas corpus to try to bring the child home again, the courts denied the release, using the power of parens patriae, Latin for “the State as Parent,” to hold that the state had the inherent power to maintain custody of someone who is incapable of taking care of themselves. The Court stated that “the House of Refuge is not a prison, but a school” and “the object of charity is reformation, by training its inmates to industry” (Ex parte Crouse, 1839, p. 11). This doctrine of parens patriae became the primary focus for the treatment of any juvenile brought to court, whether they were accused of criminal behavior or just misbehavior. The notion was that the court would protect the child from poverty and thus a life of crime or “delinquency.”

The Rise of Juvenile Courts

The Illinois Juvenile Court Act of 1899 has been credited as forming the first “Juvenile Court” as distinct from adult criminal court. Using the doctrine of parens patriae, this new court sought to provide guidance to wayward youth, as opposed to criminally punish them. However, during the drafting of the law, little attention was given to the actual procedural process. The law simply acknowledged that children should not be sent to adult criminal court, so a judge or a magistrate talked to the child, “adjudicated” him, and ordered services. Believing that these judges were removing the child from regular adult criminal court and that the judge would act as a parent looking after the child, they saw no need to create criminal procedural safeguards. Thus, the modern juvenile court system was built on the idea of protection of society from wayward children by placing these youth in “reform schools” but also built on protection of the child by removing them from adult criminal courts and jails.

By 1925, most states had laws creating a specific “Juvenile Court” of some sort that removed youth from the adult system. These new juvenile courts varied greatly, as the process was generally left up to the presiding judge. Judge Ben Lindsey was an outspoken leader in the early movement with the creation of Denver Juvenile Court in 1900, which he ran as an informal court of equity. He believed children did not need criminal procedural protections, such as the Fifth Amendment privilege against self-incrimination, stating that children ought to be encouraged to admit their wrong-doing because the court's goal was to provide treatment. Because of the belief that the courts were attempting to rehabilitate and educate children rather than punish them, there was little perceived need to provide legislative protections for procedural due process in these juvenile court statutes. Defense attorneys, if indeed there were any, played little part in the disposition of the case.

Whether this new juvenile court system actually functioned to rehabilitate children rested solely on the personal beliefs regarding benevolence of the judge overseeing the system and the services a community could provide. Model programs, like the Juvenile Court of Allegheny County in Pennsylvania operating from 1933 to 1968 under its own charter, developed elaborate procedures to handle both delinquent and “incorrigible” youth by training probation officers and social workers to present the “facts” and provide the court with recommendations for necessary treatment to reform the child. This medical model persisted throughout the early part of the 20th century. However, public criticism arose because of the wide disparities, seen from one county to the next even within the same state, that resulted from the lack of formal procedures and the complete discretion of the individual juvenile court judges.

The Constitution Applies to Youth

In the 1960s, legal scholars began to publish articles critical of the parens patriae model because juvenile courts were functioning more like adult criminal courts, seeking punishment and locking children in “reform schools,” that were often just juvenile prisons, for petty crimes and simple poverty. Case law changes move slowly because each individual case that a court decides can deal only with the issues of that specific case. Occasionally the Supreme Court will decide a case that brings about sweeping changes in a field of law. That is exactly what happened with two famous cases in the mid 1960s in juvenile delinquency law with Kent v. United States (1966) and In re: Gault (1967) (see Part Three, this chapter).

This shift towards granting Constitutional rights to children within the informal setting of juvenile court was a dramatic change from the parens patriae culture. As juvenile courts became more like adult court in the punitive aspect, the culture shifted to the protection of children from the law and shifted away from protection of society from children. The inherent conflict in the duties of a paternalistic juvenile judge began to grow more apparent as more stories began to creep out from the secret world of these confidential courts indicating that some were more punitive than rehabilitative. This cultural shift led many states and the federal government to conduct studies and pass legislation addressing juvenile law in attempts to standardize the ways that children were being dealt with in courts across the nation.

Federal Legislation to Protect Children

As law review articles and Supreme Court cases began to shift towards the view that the Constitution does indeed apply to children, federal legislation to protect youth began to take form. In 1967, the President's Commission of Law Enforcement and Justice devoted a full chapter to many various problems with how juvenile courts were being conducted throughout the country. In 1968, Congress passed the Juvenile Delinquency and Prevention Control Act to encourage removing children who had not committed a crime, called “status offenders,” from locked facilities. When little changed, the Federal Juvenile Justice and Delinquency Prevention Act of 1974 (JJDP) was passed in attempt to mandate change in states’ juvenile laws. This landmark legislation was the first federal attempt to support a nationwide comprehensive approach to the problems in juvenile justice. The Office of Juvenile Justice and Delinquency Prevention (OJJDP) was formed to provide training and assistance to develop community-based treatment services and oversee and disburse federal grants to model programs. Receipt of the federal grant monies for juvenile services was based on whether states complied with the two core principles of deinstitutionalization of status offenders (DSO) and separation of juvenile delinquents from adult offenders, called “sight and sound separation.” The deinstitutionalization principle aimed to protect children by not allowing status offenders to be locked up for non-criminal misbehavior, like running away or skipping school. The “sight and sound separation” principle stated that delinquents should not be housed in a facility where they could see or hear any adult offender, thus striking a balance between protecting society by locking up the delinquent child and protecting the child from the damage of incarceration with adults.

The JJDP Act was re-authorized and amended in 1980 to establish jail removal requirement as a third core principle, stating that juveniles should not be placed in adult jails at all. However, because some large cities were continuing to struggle with too many “out-of-control” youth who misbehaved, ran away, or skipped school but did not get charged with breaking a law, it also included the “Valid Court Order” exception, creating a loophole to allow judges to incarcerate status offenders if they had violated an order from a juvenile court judge to abide by certain conditions. This loophole returned some control to juvenile judges to protect society from misbehaving children. In an attempt to improve and standardize procedures in juvenile courts nationwide, the JJDP Act has been amended many times to address growing or new concerns within juvenile justice. Currently it has 28 requirements; however, the Federal grant funding is only decreased for non-compliance in any of the four “core requirements:” 1) deinstitutionalization of status offenders (DSO); 2) separation of juveniles from adult inmates (sight and sound separation): 3) removal of juveniles from adult jails and lockups (jail removal); and 4) addressing disproportionate minority contact (DMC). This brought the pendulum swinging back to protection of the child. However, media reports of youth committing violent crime did not allow it to swing this way for long.

The “Super Predator” and “Youth Gangs”

As the twentieth century was winding down, the pendulum swung back towards protection of society from dangerous children. The last three decades are frequently referred to as the “get tough” era of juvenile justice. In the mid 1970s, states began toughening laws regarding juveniles by easing transfer processes to allow more youth and more offenses to be brought back into adult court. The National Advisory Committee of Juvenile Justice began to criticize the requirements of the JJDP Act regarding deinstitutionalization. Courts across the nation began to focus on delinquency deterrence by heavy punishment. In 1995, criminologist John Dilulio coined the phrase “super-predator” to describe youth he claimed had “no respect for human life” and “no concept of future” based on studies of youth involved in criminal gangs. Crime statistics were blaming youth and “youth gangs” for the increase in violent crime. While there was a brief spike in juvenile crime from the mid 1980s to early 1990s, review of Federal Bureau of Investigation (FBI) statistics over time belie the myth that teens were becoming more violent. In fact, the FBI reports of crime statistics found that 70% of the recent increase in violent crime had been committed by adults. However, this perception that youth crime was spiraling upward spurred states to strengthen laws against juveniles in effort to deter youth violence.

As fear of the “super-predator” spread through media attention, social culture began t...

Table of contents

• Cover
• Endorsements
• Half Title
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Foreword
• Acknowledgments
• Introduction
• PART ONE Overview
• PART TWO Assessment
• PART THREE Case Studies
• Appendix A
• Appendix B
• Bibliography
• Index