The past few decades have witnessed major debates over youth justice policies. Juvenile and youth justice legislation has been reviewed in a number of countries. Despite the fact that new perspectives (such as restorative justice) have emerged, the debates have largely focused on issues that bring us back to the inception of juvenile justice: namely whether youth justice ought to be more akin to punitive adult criminal justice or more sensitive to the welfare of youths. This issue has been at the core of policy choices that have given juvenile justice its orientations since the beginning of the twentieth century. It also gave shape to the evolution that paved the way for the creation of juvenile courts in the nineteenth century. Understanding those early debates is essential if we are to understand current ones, and put them into perspective.
The emergence of a distinct status for minors occurred in the nineteenth century, through legislation, judicial decisions and practices, and through the establishment of specialised institutions. In the first part of the nineteenth century, imprisonment became more central than ever in the arsenal of punishments. Soon it became clear to many people that, when detained, children ought to be confined in quarters separate from those of adults, if only to protect them from the nefarious influence and immorality of adult detainees. But specialisation led to more than just physical separation. The idea of reforming children made its way, in conjunction with the view that children were led into delinquency by an unsuitable environment. Responding to their welfare needs and protecting them appeared the most appropriate way to prevent future delinquency. In the USA, the parens patriae doctrine had been invoked in the nineteenth century to justify confinement made without the normal procedural safeguards, in the interest of children. When the concept of separate courts for children emerged at the very end of the century, the same doctrine was used to support the creation of a new type of court (not just separate hearings from those of adults), where children’s cases would be heard in an informal manner by a paternal judge concerned with the children’s welfare. In the USA, the promoters of the juvenile court were called child savers, an expression indicative of their orientation.1 Responding to the welfare needs of children was viewed as more efficient than punishment to prevent future delinquency.2 Yet, depending on countries and jurisdictions, the endorsement and implementation of a child welfare or protection approach was not without hurdles, both in the institutions of confinement and in the juvenile courts.
Many publications deal with policies designed for children and youths. Some of them include a chapter or a section of a historical nature. The number of books that focus specifically on historical issues is far more limited. Among them, a good number deal with the events and policy debates that led to the creation of institutions for the confinement of children or juvenile courts. Platt’s seminal work on the advent of the Chicago juvenile court stands as a remarkable example. Yet, as Garland warns us, ‘do not mistake talk for action’3: the ways in which such institutions and courts operate must be examined, for policy intentions do not necessarily find their way into practice. In the case of juvenile courts, it is often assumed that this institution brought with it a welfare orientation that was enshrined right from its implementation. That misconception takes for granted that this orientation was not present in the nineteenth century; that the welfare model inspired the creation of juvenile courts in all countries; and that the welfare approach was implemented only over time. For example, Tanenhaus (2002) has argued that, in the USA, where juvenile courts were established at the beginning of the twentieth century, the process of bringing the juvenile court to become what it was meant to be, with all its characteristics, took years, if not decades, depending on the states. If we are to understand what the juvenile court was over time, we have to examine its evolution and that of its practices in the various states where it was established. This requires a type of empirical research that has gradually gained some momentum in the past two decades.4 This book is mainly—though not exclusively—devoted to this type of research, with its ability to bring us closer to the reality of the changes that were—or were not—implemented, above and beyond the intentions of the reformers who conceived them. The first goal of the book is to reflect the way juveniles were actually treated by the judicial system and by institutions of confinement in some Western countries.
The second goal is to introduce English speaking readers to some research results that are often not accessible to them because they tend to be published in other languages. Focusing on the practice of institutions and courts means that one’s attention is centred on case studies that concern a given country or place, at a given period of time. It requires working with archives more easily accessible to local researchers, who tend to write in the language of the country in which they work. An unintended—yet real—consequence is that the results of research carried out in non-English-speaking countries are little known to English-speaking readers, who often feel insufficiently fluent in other languages to overcome the language barrier and read texts in French, Dutch or German, for example. The book focuses mainly on Western countries or places where English is not the everyday working language: Belgium, France, Germany, Netherlands, Quebec (Canada), Switzerland. It aims to provide English-speaking readers with an understanding of how youths were dealt with by courts and institutions of confinement in those countries, both before and after the advent of the juvenile court.
One should add that language is far from the only characteristic that differentiates those countries from English language countries. Different legal traditions emerge from different cultures. Developed in England, the common law tradition has spread to numerous English-speaking countries. Western Continental Europe went its own way in developing individual national traditions influenced by other dominant systems (the French legal system was, for example, influential in the nineteenth century). In Canada, the Province of Quebec is part of both traditions. Thus, a book that is devoted largely to non-English-speaking countries will contribute to familiarise English speaking readers with cultural and legal traditions other than their own.
1 Overview of the Book
In addition to the first and the final chapters—this chapter and the Conclusion (Chap. 14)—the book is divided into four parts.
Part I has one chapter (Chap. 2). It has a further introductory function, different from that of the first chapter, in that it sets the general background against which the following chapters can be understood. It presents the roots, birth and evolution of juvenile justice, starting in the nineteenth century and continuing up to the first part of the twenty-first century. Part II includes three chapters that deal with nineteenth-century responses to juvenile delinquency and deviance in England and Canada. Part III focuses on policies and practices in matters of justice in the context of the welfare orientation that characterised juvenile courts in the first half of the twentieth century. It has four chapters dealing with specific aspects of juvenile justice in Switzerland, The Netherlands, Germany and Belgium. Part IV also relates to the juvenile court in the twentieth century, but it focuses more specifically on the point of view of the youths and their families, and on what happened to them. Its four chapters tell us about how young people were dealt with by juvenile justice in Belgium, France and Canada.
More specifically, Chap. 2—by Jean Trépanier—first provides an overview of the nineteenth-century roots of juvenile justice. It then looks at the advent and consolidation of juvenile justice under the inspiration of the welfare model in the first six decades of in the twentieth century. It shows how the justice system moved from an orientation towards punishment to one in which welfare considerations were dominant, insofar as children are concerned, during the period covered by the book (1815–1950). In order to understand better this evolution and see it in relation to contemporary debates, it was felt that this chapter should go beyond the 1950s, and include recent developments. An account is thus provided of the three decades starting with the 1960s, which can be viewed as a period of transformations during which some countries emphasised the welfare model and others questioned it. Finally, the debates and changes of the last quarter-century, which led some important countries—but not all—to weaken the boundaries separating juvenile justice from adult criminal justice, are evoked.
Being the first chapter of Part II, Chap. 3—by Peter King—focuses on the first half of the nineteenth century and explores two related developments: the development of various informal court procedures in relation to juveniles and the growth of a range of juvenile correctional institutions in England. Even in the absence of any formal legislative sanction, the practice of trying summarily children charged with a felony—instead of sending them to the higher courts of quarter sessions and assizes, as prescribed by the law—became well entrenched by the 1820s and the 1830s, especially in some large urban areas. Many were discharged, sometimes after a brief period in gaol ‘for further examination’. The inspiration behind such practices was not so much the child-welfare model, which was yet to come, but rather the concern for avoiding committing children who were awaiting jury trial to prison, where they would be led into further immorality by older inmates. Parliamentary endorsement of such practice was to come later in the century. At the same time, new ‘reformatory’ options were developed in relation to the sentencing and punishment of juvenile offenders. As a result, the treatment of juveniles was often very different to that of adults.
Chapter 4—by François Fenchel, Jean Trépanier and Sylvie Ménard—looks at various aspects of the changes that occurred to the incarceration of boys as it moved from prisons to institutions of reform. An analysis of the population of boys sent to both types of institution in Montreal (Canada) shows that, during the second part of the nineteenth century, institutions of reform gradually replaced prisons as the place of confinement for delinquent boys. Interestingly, the advent of the juvenile court did not involve an increase in the number of boys committed to reform schools by the Montreal court (the only juvenile court in Quebec at the time): on the contrary, that number dropped significantly upon the court’s inception, whereas at the same time the number of boys committed by courts of other districts (which were ordinary courts) increased. For the boys, the change from prison to reform institution was drastic, not only in terms of place and regime of confinement, but also as regards the length of sentences. Punishment in prison was short: one month in average. But the process of reforming boys was viewed as requiring time, so that most placements in reform institutions were at least three years long. The chapter also notes some differences in the nature of the offences for which boys were sentenced to prison and to reform institutions, as well as in the age at which the sentencing occurred.
Chapter 5—by Janice Harvey—describes life in a privately run industrial school for children ‘at risk’ that was set up in Montreal (Canada) within a wider charitable organisation for children. The school housed young children who mainly came from families struggling with poverty and related problems. Some were admitted directly at the request of the children’s parents; others were admitted under a court order, being placed there on account of the organisation’s status as an industrial school. Contrary to the first group, the placement of the second group of children was financed by public funds, which contributed towards the upkeep of both groups. In practice, the two groups were merged and underwent the same treatment. The industrial school had been created by—and within—a charitable organisation (the Montreal Ladies’ Benevolent Society), which had decided to extend its benevolent actions to children falling under the aegis of the Industrial Schools Act, and its charitable dimension set the tone as to how all its children would be treated. Even though institutions of this kind—particularly industrial schools—were part of the wider structure of social regulation set up to police families in the larger sense of the term, the school was run with a protective approach rather than a repressive one, within a logic that mixed both regulation and assistance.
The first chapter of Part III, Chap. 6—by Joëlle Droux and Mariama Kaba—looks at the Geneva juvenile court in its first decade (1914–1925). The 1913 Act that established this court arose from ambiguous, apparently contradictory, ambitions: removing mino...