Transformation of Juvenile Justice Philosophy and Practice

1. Transformation of Juvenile Justice Philosophy and Practice Presented by Jim Burfeind, Ph.D. Professor and Chair, Department of Sociology Criminology Program The University of Montana

2. The Social and Legal Concept of “Juvenile Delinquency” Three historical developments that led to the concept of juvenile delinquency: • The discovery of childhood and adolescence as developmental stages in the life cycle during the Enlightenment Period (1600s – late 1700s). • The development of parens patriae as a legal concept in English Equity Law, beginning in the 14th century (1300s). • The emergence of positivist criminology in the late 1800s.

3. The Social and Legal Concept of “Juvenile Delinquency” As a result of these historical developments: • Adolescence began to be viewed as a distinct and crucial developmental stage – an age of dependency and risk. Juvenile delinquency is seen as a manifestation of problematic adolescent development. • The scientific method was used to identify key causes of delinquent behavior, allowing for prevention, assessment, and reform. • While the family was viewed as centrally important, the state has a vested interest in the welfare of children and must assume parental authority if the parents are unable or unwilling to handle their parental duties and responsibilities.

4. The Invention of the Juvenile Court • The creation of the first juvenile court in Chicago in 1899 was a culmination of a series of changes throughout the 1800s, but most significantly the child-saving movement of the late 1800s. • “An Act to Regulate the Treatment and Control of Dependent, Neglected, and Delinquent Children” (1899). • The new juvenile court established a separate legal system that is noteworthy in three primary ways: • Separate structure and broadjurisdiction. • Legal authority under parens patriae. • Legal philosophy and process – the rehabilitative ideal.

5. Separate Structure and Broad Jurisdiction • A separate court with its own personnel. • Broad jurisdiction: The Illinois Juvenile Court Act (1899) specifically allocated the first juvenile court authority to deal with: • Dependent and neglected youth • Status offenders • Delinquent youth

6. Legal Authority – Parens Patriae • Robert Mennel observes that “the creation of the juvenile court represented both a restatement and an expansion of the parens patriae doctrine.” • Commonwealth v. Fisher(1905, Pennsylvania Supreme Court): “To save a child from becoming a criminal, or from continuing in a career of crime, to end in maturer years in public punishment and disgrace, the legislatures surely may provide for the salvation of such a child, if its parents or guardians be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state’s guardianship and protection.” • The Illinois Juvenile Court Act provided a variety of dispositions of commitment for dependency & neglect, status offenders, and delinquent youth.

7. Legal Philosophy and Process– The Rehabilitative Ideal – • Diminished criminal responsibility. • A child welfare approach: the child-savers envisioned the juvenile court as a welfare system, more than a judicial system. • Protect, nurture, discipline, and reform. • Casework involving rational, scientific assessment to determine an individualized treatment. • A focus on the offender, not the offense. • Informal, family-like procedures, promoting the rehabilitative ideal: • An informal setting • Nonadversarial process: civil, not criminal • Limited due process

8. The Second Revolution inJuvenile Justice In the second revolution, significant change was imposed on the juvenile justice system through changes in law, both case law and statutory law. • The due process revolution in juvenile justice (roughly 1966 – 1975). • Enactment of the Juvenile Justice and Delinquency Prevention Act of 1974. • A “get tough” approach: Initiatives for punishment and accountability, beginning in the 1980s.

9. The Due Process Revolution in Juvenile Justice Due process of law: procedures of justice that are stipulated by law and applied through appellate court decisions. These procedures extend individual freedoms and limit governmental powers as established in constitutions. • Kent v. United States (1966) • in re Gault (1967) • in re Winship (1970) • McKeiver v. Pennsylvania (1971) • Breed v. Jones (1975)

10. The Juvenile Justice and Delinquency Prevention Act of 1974 • Redefine juvenile delinquency as distinct from status offenses. • Diversion and deinstitutionalization of status offenders: encourage use of community-based programs. • Reform the use of detention: jail removal; sight and sound separation; and disproportionate minority confinement. • Delinquency prevention through the identification of cause-based risk factors and effective prevention programming.

11. Getting Tough: Initiatives for Punishment and Accountability • Transfer provisions: judicial waiver; concurrent jurisdiction; and statutory exclusion. • Sentencing authority: offense-based dispositions, retribution and deterrence replaced rehabilitation. • Confidentiality:statutory law change allowing for the release of juvenile court records. • Balanced and restorative justice: offender accountability, public safety, and offender competency development. Balanced Juvenile Justice and Crime Prevention Act (1996)

12. Juvenile Accountability Incentive Block Grants Program (1997) • Serious violent juvenile offenders, age 15 years or over, must be criminally prosecuted in adult court; • Graduated sanctions should be imposed for every delinquency act, including probation violations, and sanctions must escalate for each subsequent, more serious offense or probation violation; • Records of juvenile felony offenders, who have a prior delinquency adjudication, are to be treated in a manner equivalent to adult records, including submission of such records to the FBI; and • Parental responsibility: state law must not prohibit juvenile court judges from issuing court orders that require parental supervision of juvenile offenders.

13. Montana Code Annotated – 2007 41-5-102. Declaration of purpose. The Montana Youth Court Act must be interpreted and construed to effectuate the following express legislative purposes: (1) to preserve the unity and welfare of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of a youth coming within the provisions of the Montana Youth Court Act; (2) to prevent and reduce youth delinquency through a system that does not seek retribution but that provides:      (a) immediate, consistent, enforceable, and avoidable consequences of youths' actions;      (b) a program of supervision, care, rehabilitation, detention, competency development, and community protection for youth before they become adult offenders; and      (c) in appropriate cases, restitution as ordered by the youth court; (d) that, whenever removal from the home is necessary, the youth is entitled to maintain ethnic, cultural, religious heritage whenever appropriate;(3) to achieve the purposes of subsections (1) and (2) in a family environment whenever possible, separating the youth from the parents only when necessary for the welfare of the youth or for the safety and protection of the community; (4) to provide judicial procedures in which the parties are ensured a fair, accurate hearing and recognition and enforcement of their constitutional and statutory rights.