A Separate Court for Children: Historical Antecedents of a Juvenile Court

1. A Separate Court for Children:Historical Antecedents of a Juvenile Court Class 4

2. CASE OF THE DAY • Dixon Facts • Issues • Race (Lowery comments) • Consent by minor (15.75 years) • Victim-witness credibility (immaturity, competence) • Why is Dixon seen by jurors of less culpable than would an older male? • Dixon’s alleged prior “inappropriate” sexual behavior • Constitutional questions • Comparison to Berkeley case?

3. Origins of a Separate Court • Common law origins of separate jurisprudence • Institutional separation followed much later • House of Refuge, 1824 • Diversionary and protective rationale • Between 1840s and 1870s, most states had built separate institutions for juvenile offenders, called “reformatories” • Followed jurisprudential evolution • Passage of infancy defense laws (children under 10 were incapable of committing a crime)

4. Changing Historical Contexts • Immigration waves in the 19th and 20th centuries • Industrialization and urbanization • Reflected the rise of social science, expansion of the legal profession, and a demand for a more effective response to the social threat of youth crime (rise of social science in universities, too) • Temperance and suffrage movements • Threat to court grew as population changed and crime rates rose

5. The New Juvenile Court • Chicago, Denver were first • Children’s Bureau in federal government in 1912 • 368 juvenile courts in all but two states by 1927 • A uniquely American creation, but a bureaucratic manifestation of an old state function • Initially shaped by the concept that a child could not commit a crime, and that treatment was more effective than punishment in reducing further crime • Most courts copied the language and categories defined by the two early juvenile courts (diffusion of innovation)

6. The Diversionary Rationale • Institutional and jurisprudential separations were based initially on stigma prong: young offenders should be separated from the corrupting influences of adult criminals, protected from “idleness,” removed from their corrupting neighborhoods. • Juvenile court would assume the “protective” role of the parent • Privacy rationale to avoid social stigma • Separate language to go along with separate institutions and separate logic

7. The Rehabilitative Rationale • Reformers expanded institutional and jurisprudential rationales to include intervention in children’s lives • Progressives and the growing influence of social science • Court expanded its reach to “all troubled children,” not just those who broke the law • Goal was to turn delinquent, dependent and other “troubled children” into productive citizens • Unwashed, unruly, unprotected, disobedient • Its guardianship over a child was temporally indefinite • But the programmatic expression of this philosophy grew slowly – murky child welfare philosophy prevailed through the 1920s, to be replaced by psychology and more “scientific” approaches to reform and rehabilitation • Funds were not there for elaborate services

8. A Democratic Experiment? • Most of the juvenile courts actually handed the work of “rehabilitation” and supervision off to private charities, or to child welfare agencies. Not unlike today’s specialized courts (e.g., drug courts) • The “ideal” juvenile court was in fact a social welfare agency, almost totally separated from the common law doctrines of crime, culpability and punishment, but linked by its capacity to punish when social interventions failed • This is one of the reasons why reformers thought that children had no need for lawyers, juries, notice, or the right to confront witnesses

9. How Old is a Juvenile? • Socially, American culture assumed that 14 was an upper limit on “childhood”, and permitted kids to work by that age. • Most offenders were in the 12-16 age range, but courts took (and kept) adolescents through age 18 (there were exceptions). • Girls were referred to some juvenile courts through age 22 • So, these early courts extended the chronological age of childhood well beyond the age that most Americans considered them to be competent to assume adult roles (work, marry, leave school).

10. Can the Juvenile Court Co-Exist with Due Process? • “For the child’s own protection” (Schall v Martin) • Zimring claims that diversionary principles can be reconciled with procedural formality (lesser of evils, still protective and less stigmatizing) • Narrowing jurisprudence: the expulsion of non-criminal offenders from the juvenile court (aka “status offenders”) to better fit with the introduction of rights and due process in the juvenile court

11. Understanding What the Court is By Analyzing Who It Rejects • Beyond reform and diversion, there was no clear articulation of who belonged and why • Easier to understand the court’s rationales and theory by looking at who it ejected • Change in court boundaries and rationale reflects changes in broader normative views on penal policy and adolescence • Abraham and Tate cases • Dixon • Drug crimes

12. Is it possible to reconcile other punishment goals – deterrence, incapacitation – with juvenile court rationale? • Concept of penal proportionality further circumscribes the Juvenile Court’s rationale – can there be a maturity heuristic? Or a culpability heuristic? • Discretion as a battleground in criminal jurisprudence – why not in the juvenile court, too? (Allen essay)

13. Abolish? Ainsworth’s(and Feld’s) Complaints • Is the rationale for the court today different from 100 years ago? • As a social problem, why does the juvenile court need to re-articulate its rationale (do other legal institutions?) • Modernity (?) has mooted the concept of adolescence • Rights violations in juvenile court trumps diversionary benefit • especially in light of increasingly stiff punishments in juvenile court (e.g., Washington [state])

14. Popular or democratic rejection • Socially constructed, too? Declining juvenile crime rates suggest that some components of “adolescence” are enduring and transcendent • Do waiver laws and investment of authority in prosecutors and away from judge necessarily signify that the principles – diversionary, interventionist – of the juvenile court are invalid? • How adequate are Feld’s attempt to accommodate principles of youthfulness and diminished culpability into the criminal court? • Juvenile death penalty? • Stay tuned