Download A Separate Court for Children: Historical Antecedents of a

A Separate Court for Children:
Historical Antecedents of a
Juvenile Court
Class 4
CASE OF THE DAY
• Dixon Facts
• Issues
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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?
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)
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
The New Juvenile Court
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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)
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
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
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
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).
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 noncriminal offenders from the juvenile court (aka
“status offenders”) to better fit with the introduction
of rights and due process in the juvenile court
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
• 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)
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])
• 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