juvenile court system, to examine the pros and cons of the juvenile justice system, examine the various stages in the

10: Juvenile Justice

Learning Objectives

In this section, you will be introduced to juvenile justice. This section is designed to be a broad overview of the

juvenile court system, to examine the pros and cons of the juvenile justice system, examine the various stages in the

juvenile justice system, and discuss contemporary issues facing juvenile justice. After reading this section, students

will be able to:

• Summarize the history and purpose of the juvenile court

• Explain the pros and cons of the juvenile justice system.

• Briefly examine the stages of the juvenile justice system

• Examine the reasons supporting and criticizing the process of waiver to adult court

• Explain how due process has evolved through the juvenile court.

Critical Thinking Questions

1. What impact did the child savers have on juvenile justice reform?

2. Explain how due process has been used throughout the history of the juvenile justice system.

3. How has the juvenile justice system evolved since it was created?

4. What are the different types of waiver?

5. What four areas changed the juvenile court?

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10.1. Youth Crime

ALISON S. BURKE

Since the early 1990s, America has witnessed an increase in the fear of youth crime.
1

Sensationalized media

exposure in the 1990s facilitated the public’s fear of youth crime, which resulted in get tough legislation and a

perceived need to “do something” about juvenile crime.
2

The juvenile court was criticized for its inability to

control youth crime and, as a result, policies shifted from rehabilitation to punishment of juvenile offenders.
3

This punishment included an increase in the number of states that adopted new legislation or revised their

previous statutes to facilitate the transfer of youthful offenders from juvenile court to criminal court to be

tried as adults.
4

Ted Talks: Jeffrey Brown An architect of the “Boston miracle,” Rev. Jeffrey Brown started out as a
bewildered young pastor watching his Boston neighborhood fall apart around him, as drugs and gang

violence took hold of the kids on the streets. The first step to recovery: Listen to those kids don’t

just preach to them and help them reduce violence in their own neighborhoods. It’s a powerful talk

about listening to make a change. https://www.ted.com/talks/

jeffrey_brown_how_we_cut_youth_violence_in_boston_by_79_percent?language=en#t-24954

1. Benekos, P., & Merlo, A. (2004). Controversies in juvenile justice and delinquency. Anderson Publishing.
2. Myers, D.L. (2001). Excluding violent youth from the juvenile court: The effectiveness of legislative waiver.New York: LBF Scholarly Press.
3. Feld, B.C. (2001). Race, youth violence, and the changing jurisprudence of waiver. Behavioral Sciences & the , 19(1), 3-22.
4. Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 National Report. Washington, DC: U.S. Department of

Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention

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10.2. Juvenile Justice

ALISON S. BURKE

The contemporary juvenile justice system operates under the premise that juveniles are different than adults

and require special attention and treatment. The juvenile justice system believes that juveniles are malleable

and can be rehabilitated. The juvenile court is based on the premise that public safety is best served by

emphasizing the rehabilitation, rather than the incapacitation and punishment of juveniles.
1

Unfortunately,

sensationalized media exposure of violent youth has led to exaggerated public fear of juvenile crime, get

tough legislation, and a perceived need to “do something” about juvenile crime.
2

This punitive position

is nothing new. Before the inception of the juvenile justice system a mere 100 years ago, youth were

treated the same as adults. They were considered culpable for their actions and housed alongside adult

offenders in jails and prisons. Recent research has utilized neuroscience to support the need to treat juveniles

differently because they are different. The sections of the brain that govern characteristics associated with

moral culpability do not stop maturing until the early 20s. Therefore, it is assumed that someone under age

20, such as a juvenile delinquent, has an underdeveloped brain.

When addressing juvenile delinquency in America, the pendulum swings from punitive policies to

rehabilitative policies and then back again depending on media, politics, and the current climate. There is

no magic bullet approach to preventing juvenile delinquency, but as the court evolves, changes, and utilizes

best practices, it gets closer.

Ted Talks: Stephen Case The youth crime ‘problem’ is examined as a social construction and moral
panic created by institutions in Western societies. The talk traces the evolution of youth crime into a

phenomenon persistently misrepresented as an escalating social epidemic. The developmental life stages of

‘childhood’ and ‘adolescence’ as inventions are explored, highlighting differences between young people

and adults. In this way, ‘youth crime’ can be identified as a social problem requiring distinct responses.

A running theme is a child as a source of adult anxiety and fear, motivating societies to create structures,

1. Cox, S. M., Conrad, J. J., & Allen, J. M. (2003). Juvenile justice: A guide to theory and practice. McGraw-Hill Humanities, Social Sciences
& World Languages.

2. Benekos, P., & Merlo, A. (2004). Controversies in juvenile justice and delinquency. Anderson Publishing.

390

processes, theories, and images of youth crime that punish lawbreakers. The ‘solution’ is the ‘positive youth

justice’ model. Children should not be punished as if they are adults but their criminal behavior should be

seen as a normal part of growing up. Instead, they should be worked with to meet their needs, to embrace

their human rights and to promote their life chances. https://www.youtube.com/watch?v=QYWPyiZIpV8

Introduction to the American Criminal Justice System

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10.3. History of the Juvenile Justice System

ALISON S. BURKE

The juvenile court was created in Cook County Illinois in 1899, but the concept dates back to seventeenth

century Europe. The term ppararens patriaeens patriae originated in the 12th century with the King of England and literally
means “the father of the country.” Applied to juvenile matters, parens patriae means the king is responsible for
and in charge of everything involving youth.

1
Parens patriae was often used by royalty in England from their

homes in the name of the king. Children were often seen as property and were thus subject to the wishes of

the king or his agents.
2

This was especially relevant when they violated the law.

Within the scope of early English common law, parents had the primary responsibility of raising their

children in any manner they deemed fit. However, when children reached 7 years of age or committed a

criminal act, chancellors, acting in the name of the king, adjudicated matters concerning the youth. The

youth has no legal rights and were essentially wards of the court. As such, the courts were tasked with

safeguarding their welfare. While parents were merely responsible for childbearing, the state had the primary

and legitimate interest in the upbringing of the children.
3

The concept of parens patriae had a substantial influence on events in the United States, such as the child-
saving movement, houses of refuge, and reform schools. The persistent doctrine of parens patraie can be seen
evolving from “king as a father” to a more general ideology, that of the state “acting in the best interest of

the child.” Subsequent matters involving youth revolve around this notion of acting in the best interest of

the child, whether children were taken away from wayward parents, sent to reform schools for vagrancy,

or even held in institutions until they read the age of majority, or 18 years old. The idea is that the state is

acting in their best interest, protecting the youth from growing up to be ill-prepared members of society.

Thus, the courts are intervening for the youth’s own good.

In the nineteenth century, children were gradually seen as vulnerable and in need of special care and

supervision. One illustration of this concept was the establishment of a house of refuge in New York City
in 1825. These were urban establishment used to corral youth who were roaming the street unsupervised or

who had been referred by the courts.
4

These houses were not intended to house criminals, but rather at-risk youth, or youth who were on the

1. Merlo, A., & Benekos, P. (2019). The Juvenile Justice System, Delinquency, Processing, and the (9th ed.) Pearson.
2. Shoemaker, D. (2018). Juvenile Delinquency (3rd ed.). Rowman & Littlefield.
3. Merlo, A., & Benekos, P. (2019). The Juvenile Justice System, Delinquency, Processing, and the (9th ed.). Pearson.
4. Merlo, A., & Benekos, P. 2019. The Juvenile Justice System, Delinquency, Processing, and the (9th ed.). Pearson.

392

verge of falling into a life of crime because of their social circumstances. Because of the notion of parens
patriea, many of the parents of these youth were not involved in the placement of their children in these
houses. The case of Ex Parte CrEx Parte Crouseouse is an example.

5

In 1838, a girl named Mary Ann Crouse was sent to a Philadelphia house of refuge at the request of her

mother. Her father petitioned to have her released since she was committed without his consent. However,

on the grounds that the state has the right to remove children from their home, in their best interest and

even sometimes over parental objection (because of parens patriae), the Pennsylvania Supreme Court denied

the father’s petition. The court declared that failed parents lose their rights to raise their children. Parental

custody and control of their children is natural, but not an absolute right. If parents fail to care for their

children, educate, train, or supervise them, then the children can be taken by the state. The state is acting in

the best interest of the child.

RefReform Schoorm Schools:ols: The 1850s ushered in the development of reform schools or institutions used for the
housing of delinquent and dependent children. The schools were structured around a school schedule

rather than the work hours that defined the workhouses and houses of refuge. Many reform schools

operated like a cottage system where the youth were divided into “families” with cottage parents who

oversaw the day to day running of the family, discipline of the youth, and schooling. The structure is

still used in some youth correction institutions today, however, back in the nineteenth century, children

were often exploited for labor and many of the school de-emphasis formal education.
6

Additionally, the

emphasis of the reform school was on the strength of the family and they believed that by reinserting a

strong family presence in the lives of the youth, they would be deterred from further criminal pursuits.
7

Regardless of the lack of evaluations as to the effectiveness of these institutions, the popularity of

reformatories continued to grow.

The state had the legal authority to commit children and youth to reform schools based under parens

patriae. However, in 1870, a boy named Daniel Turner was considered a “misfortunate”, or someone who
was in danger of becoming delinquent because his family was poor and unable to care for him. He was

remanded to a Chicago house of refuge for vagrancy, not a delinquent act. His father filed a writ of habeas

corpus and the court ruled that the state has no power to imprison a child, who has committed no crime,

on the mere allegation that he is “ destitute of proper parental care, and is growing up in mendicancy,

ignorance, idleness, and vice.”
8

People Ex Rel. O’connell v. Turner, 55 Ill. 280 (Ill. 1870). This effectively
closed the reform schools in Illinois since they could no longer house non-criminal children. This case

challenged the practice of parens patriae and ruled that the state can only take control of children if the
parents are completely and utterly unfit and/or the child had committed some act of “gross misconduct.”

9

5. Ex Parte Crouse (1839)
6. Mennel, R.M. (1973). Thorns & Thistles: Juvenile Delinquents in the United States from 1825–1940. Hanover, NH: University Press of New

England.
7. Shoemaker, D. (2018). Juvenile Delinquency (3rd ed.). Rowman & Littlefield.
8. People Ex Rel. O’connell v. Turner, 55 Ill. 280 (Ill. 1870).
9. Fox, S.J. (1970). Juvenile Justice Reform: An Historical Perspective. Stanford Review, 22:1187–1239

Introduction to the American Criminal Justice System

393

Child Saving Movement:Child Saving Movement: By the end of the ninetieth century, cities were experiencing the effects of

three major things: industrialization, urbanization, and immigration. Industrialization refers to the
shift in work from agricultural jobs to more manufacturing work. This led to a greater number of people

moving from the country to the cities, and the cities increasing exponentially in population without the

infrastructure to support the increase. Immigration refers to the internal migration of people in America

and the external movement of people from other countries. Within America, people were moving from

the southern states (remember, this is not long after the end of the Civil War, which ended in 1865) and

immigrating from European countries such as Ireland (the potato famine lasted from 1845-1854 and killed

an estimated 1.5 million people). Millions of Germans and Asians also immigrated to America during this

time lured by Midwest farmlands and the California Goldrush.
10

The influx of people into cities weakened the cohesiveness of communities and the abilities of

communities and families to socialize and control children effectively.
11

Nonetheless, the child-saving

movement emerged during this time in an effort to change the way the state was dealing with dependent,
neglected, and delinquent children. The child savers were women from middle and upper-class

backgrounds.

There is some debate as to the motives of the child savers. The traditional view is that they were

progressive reformers who sought to solve problems of urban life, while others contend that they used

their station and resources as an effort to preserve their middle-class white way of life by overseeing the

treatment of the immigrant children. Regardless of their motives, it is safe to say that child-savers were

prominent, influential, philanthropic women, who were “generally well educated, widely traveled, and had

access to political and financial resources.”
12

Creation of the Juvenile Court
The juvenile court was created in Cook County, Illinois in 1899. The Illinois Juvenile Court Act of

1899 was the first statutory provision in the United States to provide for an entirely separate system of

juvenile justice. The court was created to have jurisdiction over all matters pertaining to youth- dependent,

neglected, and delinquent youth.

A 1905 Pennsylvania Supreme Court case, Commonwealth v. Fisher
13

Commonwealth v. Fisher, 213
Pennsylvania 48 (1905)

14
, conveyed the legal authority of the new juvenile court under parens patriae:

“To save a child from becoming a criminal, or from continuing in a career of crime, . . . 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.”

In this case, a juvenile was given a seven-year sentence for a minor crime which would have received a

10. History (n.d.). US immigration before 1965. https://www.history.com/topics/u-s-immigration-before-1965
11. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.
12. Platt, A. (1977). The Child Savers: The Invention of Delinquency (2nd ed., pp.83). Chicago: University of Chicago Press.
13.
14.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ

394

much lesser sentence in adult court. The court upheld the sentence and deemed it was in the best interest

of the child. As a result of the case, parens patriae was back. The court ruled that “importance to the

commonwealth which is vitally interested in rescuing and saving its children, wherever rescue, care and a

substitute for parental control are required, to the end that they may, in the enjoyment of sober, industrious

and happy lives, fill the full measure of good citizenship.”

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10.4. Delinquency

ALISON S. BURKE

Before the creation of the juvenile court, there was no such thing as “delinquency.” Youth were convicted

of crimes, the same as adults. Just as the concept of “childhood” is socially constructed, scholars also say that

“juvenile delinquency” is likewise socially constructed as a result of social, economic, and religious changes.
1

The juvenile court oversees cases for youth between the ages of 7 and 17. Seven is considered the lower

limit of the reaches or protections of the juvenile justice system, while 17 is the upper limit. At 18, youth

are considered adults and are tried under the laws of the adult criminal justice system. However, some states

have differing upper age limits. For example, in Oregon, the Oregon Youth Authority houses youth until

the age of 25. Other states have similar provisions and although the lower limit is seven years of age, most

states do not intervene in cases under nine.

Youth Processing Ages

After the creation of the juvenile court, the child savers and reformers were worried that restricting the court

1. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.

396

to only deal with criminal youth would make the court function like an adult criminal court rather than a

rehabilitative parental figure. Within a couple of years of its founding, amendments to the Illinois Juvenile

Court Act broadened the definition of delinquency to include incorrigible youth, or otherwise unruly and

out of the control of their parents.
2

The definition of juvenile delinquency now included status offenses or
offenses that are only illegal because of the age of the offender. Examples include: drinking alcohol, running

away, ungovernability, truancy (skipping school), and curfew violations. Overall, the juvenile justice system

is responsible for youth who are considered dependent, neglected, incorrigible, delinquent, and/or status

offenders.

Podcast: Caught

https://www.npr.org/podcasts/589480586/caught

The purpose of the original court was to act in a rehabilitative ideal. The main function was to emphasize

reform and treatment over punishment and punitive action.
3

Terminology in the court is even different,

to denote the separate nature from the adversarial adult processes. To initiate the juvenile court process, a

petition is filed “in the welfare of the child,” whereas this is called an indictment in the adult criminal process.
The proceedings of juvenile courts are referred to as “hearings,” instead of trials, as in adult courts. Juvenile

courts find youths to be “delinquent,” rather than criminal or guilty of an offense, and juvenile delinquents
are given a “disposition,” instead of a sentence, as in adult criminal courts.

2. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.
3. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.

Introduction to the American Criminal Justice System

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10.5. Juvenile Justice Process

ALISON S. BURKE

Did you know that there is no uniform juvenile justice system in the United States? It is quite surprising!

Matters concerning minors and children who break the law are left to the discretion of individual states and

their legislative bodies. States have different priorities, and legislators enact new laws and revise legislation

according to their own needs at the time. Although every state operates independently, they manifest

common trends and respond to certain issues in a similar manner. For example, the increasing fear of youth

violence in the 1990s precipitated more specific and punitive legislation in almost every state.
1

Some states

with very specific and real gang problems devised targeted gang suppression laws and legislation, while other

states did not. The fear of youth crime led states to create mandatory minimum legislation (like Measure 11

laws in Oregon), waiver and transfer laws, and zero tolerance policies.

The juvenile justice system has two main responsibilities: to oversee cases involving (1) juvenile

delinquency (criminal law violations and status offenses) and (2) dependency, neglect, and child abuse.
2

Due

to the loose definitions of parens patrea and the court’s attempt to act in the best interest of the child, after
World War II, the juvenile court was criticized for disregarding due process.

Due process refers to the procedural rights established in the Constitution, especially the Bill of Rights. It
includes rights such as the right to legal counsel, right to call witnesses, and right to be notified of charges

(which will be revisited in In re Gault). The original juvenile court did not implement due process rights
because it was intervening in the lives of youth for their own good, not in such a formalized adult way where

they would need constitutional protections. However, because of the abuse of power, this changed in later

decades.

Beginning in the 1960s, four areas drastically changed in the juvenile court:

(1) the juvenile due process revolution from 1966 to 1975

(2) the Juvenile Justice and Delinquency Prevention Act of 1974

(3) a growing emphasis on punishment and accountability in the 1980s and 1990s

(4) contemporary juvenile justice reform that is driven by evidence-based practices and empirical research

on adolescent development, which in turn leads us back to rehabilitation

1. Feld, B.C. (2003). The Politics of Race and Juvenile Justice: The ‘Due Process Revolution’ and the Conservative Reaction. Justice Quarterly
20:765-800.

2. Rubin 1985

398

10.6. Due Process in the Juvenile Court

ALISON S. BURKE

As discussed, the juvenile court was created with rehabilitation and individualized treatment in mind.

However, between 1966 and 1975, the court became more formalized and started “adultifying” the process.

Landmark cases for establishing due process rights in the juvenile justice system include.

Kent v. United StatesKent v. United States (1966)
1

Morris Kent was a 16-year-old boy living in Washington DC who was on probation for burglary

and theft. He was arrested again and charged with three burglaries, three robberies, and two counts of

rape. Due to the seriousness of the changes and Kent’s previous criminal history, the prosecutors moved

to try Kent in adult court. However, because of his age, he was under the exclusive jurisdiction of the

juvenile court. Kent’s lawyers wanted his case to be heard in juvenile court. Without a hearing or a full

investigation, the judge sided with the prosecutors and Kent was tried in adult court. He was found guilty

and sentenced to 30 to 90 years in prison. On appeal, Kent lawyers argued that the case should have to stay

in juvenile court and it was unfairly moved to adult court without a proper hearing.

The Supreme Court ruled that while minors can be tried in adult court, the original judge needed to

conduct a full investigation and an official waiver hearing where the merits of the case were weighed,

such as the juvenile’s age, prior charges, and mental state. Essentially, Kent was entitled to a hearing

that provided “the essentials of due process and fair treatment.” This standard includes the right to a

formal hearing on the motion of waiver and a written statement of the reasons for a waiver, the right to

counsel, and the defense’s access to all records involved in the waiver decision. It also ruled that “The parens

patriae philosophy of the Juvenile Court ‘is not an invitation to procedural arbitrariness.’”
2

1. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045 (1966).
2. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, pp. 554-556 (1966)

399

In rIn re Gaulte Gault (1967).
3

Gerald “Jerry” Gault, a 15-year-old Arizona boy, was taken into custody for making obscene calls to

a neighbor’s house. After the neighbor, Mrs. Cook filed charges, Gault and his friend were taken to the

Juvenile Detention Home. At the time he was taken into custody, his parents were at work and the

arresting officers made no effort to contact them nor did they leave a note about the arrest or where they

were taking their son. They finally learned of his whereabouts from the family of the friend who arrested

with him.

When the habeas corpus hearing was held two months later, Mrs. Cook was not present, no one was

sworn in prior to testifying, and no notes were taken. He was released and scheduled to reappear a few

months later for an adjudication hearing. In the following hearing, again, Mrs. Cook was not present and

again, no official transcripts of the proceeding were taken.

The official charge was “making lewd phone calls.” The maximum penalty for an adult charge with this

was a $50 fine or not more than two months in jail. Gault was found guilty and sentenced to 6 years in

juvenile detention.

Gault’s parents filed a writ of habeas corpus which was eventually heard by the Supreme Court. The

Supreme Court ruled that juveniles are entitled to due process rights when the court proceedings may result

in confinement to a secure facility. The specific due process rights highlighted in this case include (1) fair

notice of charges; (2) right to counsel; (3) right to confront and cross-examine witnesses; and (4) privilege

against self-incrimination.

The Court held that the Due Process Clause of the Fourteenth Amendment applies to juvenile

defendants as well as adult defendants. “Juvenile court history has again demonstrated that unbridled

discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.”

In rIn re We Winshipinship (1970)
4

Samuel Winship, a 12-year old boy living in New York, was charged with stealing $112 from a woman’s

purse in a store, a charge that “if done by an adult would constitute the crime or crimes of Larceny.” Since

he committed a crime, the charges of juvenile delinquency were justified. Winship was found delinquent

in a New York juvenile court, using the civil law standard of proof, “preponderance of the evidence.”

Winship was committed to a state training school for an initial period of 18 months with the annual

extension of no more than six years.

Upon appeal, the U.S. Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment

3. In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967)
4. In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970)

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ

400

requires “proof beyond a reasonable doubt.” The court acknowledged that juvenile proceeding is designed

to be more informal than adult proceedings, but if charged with a crime, the juvenile is granted protections

of proof beyond a reasonable doubt. Winship expanded the constitutional protections established in Gault.

BrBreed v. Joneseed v. Jones (1975)
5

A 17-year-old boy named Gary Jones was charged with armed robbery and found guilty in a California

juvenile court. At the dispositional hearing, the probation officer assigned to the case testified that Jones

was not amenable to treatment. After the hearing, the court determined that Jones should subsequently

be tried as an adult. Jones’ lawyers filed a writ of habeas corpus and argued that waiving the case to

adult court after it was already adjudicated in juvenile court violated the double jeopardy clause in the

Fifth Amendment. The Supreme Court ruled that, yes, Jones had been placed in double jeopardy. This

further formalized the juvenile court, however, The Court moved, “Giving respondent the constitutional

protection against multiple trials in this context will not, as petitioner claims, diminish the flexibility and

informality of juvenile-court proceedings.”
6

5. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779 (1975)
6. 27 Raley, Gordon. 1995. “The JJDP Act: A Second Look.” Juvenile Justice Journal, 2:11–18.

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10.7. The Juvenile Justice and Delinquency Prevention Act of 1974

ALISON S. BURKE

The Juvenile Justice and Delinquency Prevention (JJDP) Act of 1974 reformed and redefined the philosophy,

authority, and procedures of …