Bills that would lower juvenile court jurisdiction to 11 years of age and restrict the secure detention of status offenders are pending in the legislature, and a House panel has approved a resolution calling for a task force to examine and make recommendations for improving the juvenile code.
These are positive signs. The question is: Will these actions lead to improvements in how children are treated in our state? A brief review of juvenile justice history can help answer that.
Prior to the 1800s, there were no specialized institutions for juvenile offenders. Children were often subjected to the same, often harsh, punishments given to adults. As the concept of childhood gained popularity, the first youth correctional institutions began to appear in larger cities.
This served as a positive development in the eyes of many judges who were inclined to let youths go for minor infractions because they realized the placement of children in adult jails and prisons was counterproductive and other alternatives did not exist.
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During the latter half of the 1800s and the early 1900s, the number and types of youth correctional institutions increased, probation was invented and the first legislatively enacted juvenile court was opened in Chicago in 1899. By 1925, all but two states had juvenile courts.
Typically, the expressed intent of state juvenile codes mandated that their primary mission was to serve the best interests of children and protect community safety. Yet, early juvenile court legislation did nothing to help people respond to the problems facing children and families. It created legal rules and procedures, but without providing the resources to help police, court staff and others deal with problems in their communities.
In the 1960s and early 1970s, the Supreme Court began to examine juvenile court practices. In Kent v. United States (1966), the court noted that children often received the "worst of both worlds: [they receive] neither the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children."
Recognizing the harm that was done to children and families, the Supreme Court expanded due-process protections for children. This represented a significant improvement in juvenile law. Yet, despite the legal protections theoretically given to children, the reality of juvenile-justice practice means that, in too many instances, youths do not receive the type of protection they deserve.
The problem, once again, was that the resources needed to ensure children's interests were adequately protected were not provided. Moreover, the legal changes that were made had no impact on the number or quality of services and programs provided to youths outside of the juvenile court.
In examining the history of juvenile jurisprudence, it is striking how often court opinions and legislation have been based upon an idealized conception of juvenile justice rather than a realistic appraisal of juvenile-justice practices. This is not too surprising because juvenile justice has typically operated behind closed doors. Even in states where juvenile courts are open, there is often a lack of real understanding by the public about how juvenile justice functions.
This is troubling for at least two reasons. It prevents the public from seeing the successes and failures, thus denying the public critical information about an important public institution.
Second, when the public has no ability to scrutinize the operation of institutions that it entrusts to care for the most vulnerable in our community, we can be assured those institutions will fail to live up to our expectations.
It is also striking how often what we do is based on political expediency rather than on sound research.
The research is clear. Whenever possible. we should keep kids out of the juvenile-justice process. When kids become involved we must ensure they receive effective representation.
With respect to treatment, community-based programs are more effective than institutional programs. Treating juveniles as adults does not work; it neither helps youths nor protects community safety. The issue in dealing with the small group of serious juvenile offenders is not how punitive but how smart we can be.
History should help us understand that changes in the law are necessary but not sufficient conditions to develop effective responses to youths' problems. It will also take a commitment to transparency and allocating resources to develop the staff and programs necessary to do the job.
Fortunately, we know a lot about what works. The question is do we have the political will to make it happen?