Abolishing The Criminal Juvenile Justice System Criminology Essay

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Throughout the course of focusing on juvenile issues that require forethought and afterthought the idea of - Should the justice system be abolished? Has been of particular interest to me, because of the apparent disparity that exists in some cases where juveniles are denied due process for a criminal act or thrust into a complex system that does not provide much in the sense of reform. My question becomes investigative in nature to delve into an answer: Why do juveniles seemingly enter an adversarial system and not one that is rehabilitative and in some cases just? The first issue to examine is the "get tough" approach and its effectiveness as a deterrent to juvenile crimes. As a "get tough" approach on juvenile crime takes place, the demands for stronger crime policies emerge; elected officials throughout the United States are gradually dismantling the juvenile justice system and replacing it with a deceptive criminal system, a system that emphasizes mandatory sentences and formal adversarial procedures. Much of the juvenile court original case load has been reassigned to the criminal court. The question takes hold: Is it feasibly to have a separate juvenile justice system and if it is not what can replace it? It is the job of the policy makers to introspectively confront these questions, and more importantly find progressive answers. It is certain that new policies need to implemented that capture the essence of the problem and seeks to reform it. Perhaps, these new policies should focus on more than abolishing the juvenile court's delinquency jurisdiction and sending all young offenders to commonplace criminal courts (Butts, 2000, p. 1). It is equally important explore the reasons why the abolishing the juvenile court system is viewed as a viable option by some. Arguments can be made that history has shown the ineffectiveness of such as system currently today. Feld posits that judicial decisions, legislative amendments, and administrative change have changed the juvenile court from a nominally rehabilitative social welfare agency into a scaled-down second class criminal court for young people (Wiesheit & Culbertson, 2000, p. 277). Over the past century, the juvenile court struggled to provide treatment for juvenile offenders while guaranteeing them constitutional due process. But the system has been so overwhelmed by the increase in violent juvenile crime and family breakdown that some judges and politicians have suggested abolishing the juvenile system, and even those experts who want to retain an independent juvenile court have called for the restructuring and other advocates want to reduce jurisdiction over juveniles charged with serious crimes and liberalize the prosecutor's ability to try them in adult courts (Siegel & Welsh, 2009, p. 446). A compelling argument can be made for abolishing the juvenile justice system, or more specific - abolishing delinquency, the idea that juvenile offenders are not fully responsible for their actions and should be tried in a separate court system. However, there are two important distinctions to be made - abolishing delinquency is not the same thing as dismantling the entire juvenile court. Even if lawmakers ended the juvenile courts' jurisdiction over criminal law violations, the juvenile court could continue to handle other types of cases such as abused and neglected children, truants, curfew violations etc. In fact, juvenile offenders could continue to be handled by the same judges in the same courtrooms that are currently handling them, but the courts would operate as youth divisions of criminal court using criminal procedures under the criminal code. Neither would abolishing delinquency mandate that all young offenders be sent to adult correctional programs or adult probation agencies. Many states already operate separate correctional facilities for young adults. The decision to handle all young offenders in the criminal court would not prevent correctional specialization. States would still have the discretion to separate offenders by age when incarcerating or otherwise supervising convicted offenders and the federal government would still be free to require such separation as a condition of financial support for state corrections agencies. The debate will still exist whether abolishing the juvenile justice system refers only to the court's responsibility for delinquency cases. Policy makers must then decide what type of court should have legal jurisdiction over juvenile delinquents. The debate centers on whether to continue defining law violations by young people as delinquent acts, or to classify them simply as crimes and refer them to criminal court (Butts, 2000, p. 1).

HISTORICAL PERSPECTIVES OF THE JUVENILE JUSTICE SYSTEM

Juvenile courts today bear only a passing similarity to the original concept of juvenile justice formulated centuries ago. State lawmakers built the first juvenile courts around an informal, quasi-civil process. Juvenile court judges had broad discretion with which they could intervene quickly and decisively, even in cases involving hard-to-prove charges. Juvenile offenders received minimal procedural protections in juvenile court, but in return they were promised a court that would focus on their best interests. The mission of the juvenile court was to help young law violators to get back on the right track, not simply punish their illegal behavior (Butts, 2000, p. 2). The Supreme Court's decision in In re Gault (1967) began changing the juvenile court into a very different institution than the Progressives contemplated. Progressive reformers envisioned an informal court whose dispositions reflected the "best interest" of the child. The Supreme Court engrafted formal procedures at trial onto juvenile courts' individualized treatment sentencing schema. Although the Court's decision was not intended to change the juvenile courts' therapeutic mission, legislative, judicial, and administrative responses to Gault have modified the court's jurisdiction, purpose and procedures (Feld 1984, 1988b). The substantive and procedural convergence between juvenile and criminal courts eliminates most of the conceptual and operational differences between social control strategies for youths and adults (Wiesheit & Culbertson, 2000, p. 277). It is important to define the significance of the Supreme Court's Gault (1967) decision at it was two crucial gaps between juvenile justice rhetoric and reality: the theory versus practice of rehabilitation, and the differences between procedural safeguards afforded adults and those available to juveniles (Felds 1990b). The Court stressed that juveniles charged with crimes who faced institutional confinement required elementary procedural safeguards which included notice of charge, a hearing, assistance of counsel, an opportunity to confront and cross-examine witnesses, and a privilege against self incrimination. In other cases such as In re Winship (1970), the court determined that the risk of erroneous convictions required delinquency to be proven by the criminal standard "beyond a reasonable doubt" rather than by a lower civil standard of proof. In Breed v. Jones (1975), the Court posited a functional equivalence between criminal trials and delinquency proceedings and applied the ban on double jeopardy to delinquency convictions. In McKeiver v. Pennsylvania (1970), however, the Court denied juveniles the constitutional right to jury trials and halted the extension of full procedural parity with adult criminal prosecutions. Although Gault and Winship recognized the need for procedural safeguards against governmental oppression, McKeiver denied the need for such protections, invoked the mythology of benevolent juvenile court judges, and justified the procedural differences of juvenile courts by their treatment rationale (McKeiver 1970, pp. 550-51; Feld 1988b). Gault (1967), Winship (1970), and McKeiver (1970) precipitated a procedural and substantive revolution in juvenile justice that unintentionally but inevitably transformed its Progressive conception. By emphasize placed on criminal procedural regularity in determining delinquency and formalizing the connection between crime and sentence, the Court made explicit a relationship previously implicit and unacknowledged. Legislative and judicial responses to those decisions - decriminalized status offenders, waiving serious offenders, punitively sentencing delinquents, and formalizing procedures - further the convergence between criminal and juvenile courts (Wiesheit & Culbertson, 2000, p. 280). Although these reforms may have been enacted for good reason, they raise serious questions about the continuing need for a separate, juvenile court system. As lawmakers continue to increase the similarity of juvenile and criminal court sanctions, it becomes harder to rationalize the separation of the process that imposes them (Butts, 2000, p. 3).

The juvenile justice system has strayed too far from its original mission, according to Feld. Policy makers should cancel the nation's juvenile justice experiment. Today's juvenile court retains much of the terminology of juvenile law, but it functions as a pseudo criminal court. Worse, it fails to provide complete due process protections for accused youth. Juvenile courts are still not required to provide bail, jury trials, or the right to a speedy trial for youthful offenders. Feld has recommended that all law violations be handled in a criminal court, although he hopes the system will continue acknowledge the minimized culpability of the very young by imposing sentences with a "youthful discount" meaning a 17-year-old defendant would get 75 percent of the sentence due an 18-year-old, a 16-year-old would get 50 percent, etc. Even if Feld's proposed "youth discount" is ultimately rejected by policy makers, the insights and observations on which he has based these proposals cannot be ignored. Lawmakers will soon have to ask themselves the following question: "Is it possible to terminate the juvenile justice system?" The juvenile justice system conjures some strong opinions, and not all of them can be categorized as either liberal or conservative. It would also be very wrong to assume that all the critics of the juvenile courts are uncaring, law and order types who feel little compassion for the poor, disproportionately minority youth who compromise the largest percentage of the juvenile court's clients. The critics Dr. Felds are more often motivated by a concern for youth. It is their perspective, the juvenile court has never lived up to its rehabilitative promise and it never will, and more importantly, the juvenile court's lower standards of due process are no longer tolerable given its modern emphasize on just desserts and retribution. Courts were meant to handle law violations, the abolitionists say and not social welfare problems (Butts, 2000, p. 2). Policy makers have found it difficult to find middle ground in this engaging controversy, but unfortunately their compromise was to slowly criminalize the juvenile court, especially in light of the Supreme Court's ruling in Gault (1967) in which law makes across the country have encouraged juvenile courts to embrace the goals and operational style of the criminal courts. Juvenile courts currently pursue many of the objectives once unique to criminal courts, including incapacitation and retribution. Both juvenile courts and criminal courts rely on plea bargaining for case outcomes. Both are forced by growing caseloads to adopt assembly-line tactics and they often have difficulty providing individualized dispositions. It is hard to draw a distinction between juvenile courts and adult courts because of the atmosphere. Because of juvenile discretion being restricted, its once sweeping authority becomes diluted, making the court more bureaucratic and inflexible. Decades of reform increased the severity of the juvenile court process, but they also curtailed the court's ability to provide individualized and comprehensive interventions for youth offenders. Throughout most of the juvenile court's 100 year history, it is evident that we do not need a separate juvenile court system. Juvenile courts allowed society to intervene early in the lives of troubled youth and they prevented a variety of abhorrence that occurred when young defendants were incarcerated with adult offenders. Defending the juvenile court was instinctive among advocates, social workers, family therapists, clergy, educators, defense attorneys, judges and even many prosecutors. Juvenile justice as currently practiced imposes two significant cost on American youth: The first is the juvenile court itself no longer delivers its promise - rehabilitation and minimal stigmatism in exchange for due process; the second is the continuing existence of the juvenile justice system allows courts, corrections, and other youth service agencies to ignore the inherent youthfulness of many offenders now defined as adults. The growing use of criminal court transfer or waiver has been very damaging to the institutional integrity of the juvenile court. Public safety proponents are unduly focused on increasing the transfer, despite research casting doubt on its effectiveness (Butts, 2000, p. 3). Today's juvenile system is vulnerable to abolition because it attracts intense criticism from the public. Some of this criticism stems from ignorance of juvenile law and its purpose, but not all of it comes from lack of information. Many people simply no longer accept the concept of delinquency, or diminished legal responsibility due to age in other words to them, a juvenile drug dealer is still a drug dealer (Butts, 2000, p. 4). Equating seriousness with the length of confinement conflicts with the traditional concept of juvenile justice, but support for traditional justice is wearing thin. Federal and state law makers have enacted sweeping changes in the nation's juvenile justice systems and the pace of change continued even when juvenile violence began to plummet in the mid-1990s. Nearly all states have passed laws to send far more juveniles to criminal court and some jurisdictions have introduced formal sentencing guidelines that limit the discretion of juvenile court judges. Together, these efforts have begun to unravel the juvenile court's reason for being. No issue in the juvenile justice arena captivates the public or policy makers like criminal court transfers. Many policy makers believe that serious juvenile offenders should be tried in criminal court in order to achieve more certain and more severe punishment. In about half of all transfers, the offenders receive sentences comparable to what they might have received in juvenile court. About one-fifth actually receive more lenient treatment in criminal court. Some may be convicted of lesser offenses or the charges against them be dismissed due to the greater evidentiary scrutiny in criminal court. The bottom line is that criminal court transfer does not ensure incarceration, and it does not always increase sentence lengths even in cases that result in incarceration. Yet, few policies are as popular with the public or with elected officials. During the 1980's and 1990's, lawmakers enacted new transfer laws on an almost annual basis. Moreover, there was an increase in laws that moved entire classes of young offenders into criminal court without the involvement of juvenile court judges. Judicial authority in transfer decisions was diminished while the role of prosecutors and legislatures increased. Non-judicial mechanisms now account for the vast majority of juvenile transfers. Many states enacted policies that made judicial waiver presumptive and it shifted the burden of proof from the prosecution to the defense. Presumptive waiver provisions typically require a defense attorney to show proof that a youth is amenable to juvenile court handling or otherwise the juvenile is transferred to criminal court. Between 1992 and 1997, according to a series of reports prepared for the Office of Juvenile Justice, eleven states passed presumptive waiver provisions. Fourteen states (Arizona, Arkansas, Colorado, Florida, Georgia, Louisiana, Massachusetts, Michigan, Montana, Nebraska, Oklahoma, Vermont, Virginia, and Wyoming) and the District of Columbia enacted presumptive waiver laws by the end of the 1990s (Butts, 2000, p. 4). Another increasingly popular strategy for moving juveniles into the criminal courts is mandatory waiver. While presumptive waiver allows juveniles to rebut the presumption of nonamenability, mandatory waiver provides no such escape. If a juvenile meets the criteria for mandatory waiver, a juvenile court judge is left with no choice but to transfer jurisdiction. Other mechanisms have contributed even more to the deterioration of the juvenile justice system. One mechanism that has become widespread during the 1980s and 1990 was statutory exclusion, known in some states as automatic transfer. Statutory exclusion laws mandate that some young offenders are transferred automatically to criminal court as soon as they are charged with certain offenses and judicial consent is unnecessary. Direct file, also known as concurrent jurisdiction or prosecutor discretion, is another increasingly prominent form of criminal court transfer. Direct file laws give prosecutors the discretion to prosecute juveniles either in juvenile or adult court. Louisiana gives prosecutors discretion to file criminal charges against any youth age 16 and older charged with a second drug felony, a second aggravated burglary, or virtually any of the Violent Crime Index offenses. The number of juveniles transferred by prosecutors has grown sharply. Florida prosecutors alone send more than 7,000 cases to criminal courts each year (Butts, 2000, p. 5). State sentencing trends indicate that punishment and accountability, in addition to rehabilitation, have become equally important in juvenile justice policy. As a result, many states have created blended sentencing structures for cases involving serious offenders (Siegel & Welsh, 2009, p. 517). Blended sentencing policies were devised primarily to provide longer terms of incarceration for juveniles, but they also helped blur the distinction between juvenile justice and adult justice. Increasingly the variety of sentencing options may reduce the resistance of courts to handle very young offenders in the adult system since juveniles may not be subject to draw upon the traditionally resources available in the juvenile justice system without having to sacrifice the lengthy periods of incarceration once available only in the criminal court system (Butts, 2000, p. 5). Sentencing guidelines and mandatory minimum policies for juveniles also began to proliferate during the 1980s and 1990s. As of 1997, 17 states and the District of Columbia had enacted some type of mandatory minimum sentencing provisions for at least some juvenile offenders. Some jurisdictions applied sentencing guidelines to juveniles by first requiring that they be tried in criminal court, but others such as Arizona, Utah, and Wyoming enacted formal sentencing guidelines that applied to juvenile delinquency cases handled by juvenile court judges. The use of structured sentencing fundamentally contradicts the basic premise of juvenile justice by making sentence length proportional to the severity of an offense rather than basing court outcomes on the characteristics and life problems of offenders. As the popularity of these policies increases, it becomes very difficult to justify the continuation of a juvenile justice system that fails to provide complete due process protections for the youth it handles. Along with the rights of juveniles at adjudication and disposition, the issue of confidentiality in juvenile proceedings has also received attention in recent years. The debate on confidentiality in the juvenile court deals with two areas: (1) open versus closed hearings, and (2) privacy of juvenile records. Confidentiality has become moot in some respects, as many legislatures have broadened access to juvenile records (Siegel & Welsh, 2009, p. 519). As juvenile justice policy became more contentious during the 1980s and 1990s, support for confidentiality protections began to erode. Practical issues such as jurisdiction information sharing and greater media interest in juvenile court proceedings began to win out over confidentiality. Finally, some states have even passed laws enabling juvenile court records to affect criminal court sentences. Enhancing criminal court sentences with juvenile court adjudications abrogates the agreement that allowed the juvenile court to exist in the first place. Adjudication in juvenile court begins to involve potentially serious jeopardy for youth. As of 1997, according to research by Joseph Sanborn, all 50 states and the District of Columbia had enacted statutes or court rules allowing this practice or they had case law that sanctioned it. An example of this is Illinois and Indiana allow juvenile offense histories to serve as sufficient grounds for increasing sentence length or imposing consecutive sentences. Three states California, Louisiana, and Texas allow juvenile adjudications to serve as the first and second "strikes" against an adult offender. Thus an offender with two prior juvenile court adjudications could face life in prison for a first appearance in criminal court (Butts, 2000, p. 6). Evaluations of juvenile treatment programs provide scant support for their effectiveness (Whitehead and Lab 1989; Lab and Whitehead 1988). Empirical evaluations question both the efficacy of treatment programs and the scientific underpinnings of those who administer the enterprise. Although the general conclusion that "nothing works" in juvenile corrections has been persuasively refuted (Melton 1989), it has been strenuously resisted by those who contend that some types of programs may have positive effects on selected clients under certain conditions (Palmer) (Wiesheit & Culbertson, 2000, p. 284).

PROPOSED CHANGES FOR JUVENILE JUSTICE

Advocates of youth may need to reconsider their position on the juvenile court, and instead of concerning themselves only with youth who still happen to be legal juveniles; they may want to shift their focus and work to ensure fair and timely justice for all youth - even those processed in the juvenile court system. This could be accomplished from either side of the juvenile-criminal border, by making youth oriented improvements from within the criminal justice system, or by helping juvenile justice professionals to get involved in programs for young adult offenders. It may be even more effective if, however if the border no longer existed. Criminal courts are not as evil and juvenile courts are not as virtuous as some might suggest. The justice system as a whole might benefit if law makers, judges, and practitioners were able to stop fighting over the politically hobbled delinquency jurisdiction of the juvenile court. If delinquency laws were abolished and all offenders young and old were handled in an integrated criminal court system, youth advocates could begin to focus on ensuring the quality of the process used for all youth (Butts, 2000, p. 7). The question then becomes - how do we get from here to there, and how can a new justice system that protects public safety and the rights of youth while ensuring that youthful offenders get every chance they deserve to mend their ways and rejoin society if possible? One way to begin this process is to take advantage of the growing diversity in specialized courts. It is assumed by the public at large that there are two types of courts and they are criminal or juvenile, consequently though any effort to increase the symbolic strength of juvenile crime policy necessarily favors making greater use of criminal courts. American courts however are very diverse as it is evidenced by innovative specialized courts such as drug courts, gun courts, and community-based courts which bring new ideas and a wider range of choices to the criminal justice system. Some of these new courts actually resemble the traditional juvenile court in their philosophy of human behavior, their approach to processing cases, and their efforts to monitor offender compliance with court orders by close judicial supervision (Butts, 2000, p. 8). For the past two decades, state and federal officials have been slowly dismantling the juvenile justice system without much thought as to what will replace it. The emergence of innovative specialized courts within the adult system presents an unprecedented opportunity to create a new "youth justice system." Ideally, this new system would retain the best features of the juvenile court while gradually incorporating new ideas and procedures by specialized courts now spreading across the country. Eventually, each state could implement a wide assortment of court models and establish individualized intake procedures for routing young offenders to the most appropriate forum. Law makers may be able to think about abolishing the juvenile court's delinquency jurisdiction and improve the coherence of criminal justice policy for all youth, but most importantly, the juvenile court would not be an easy target for politicians who seek symbolic victories over crime (Butts, 2000, p. 8).

SUMMARY AND CONCLUSION

In conclusion, the central issue is not whether young offenders are called delinquents; the real issue is what happens to them when they are arrested and appear in court. Questions that should be asked are: What process is used to determine their culpability? Who chooses the most appropriate response for each case? How quickly does the process occur, and does it ensure the safety of the public while guarding the rights of offenders? Is the process designed to maximize each person's changes of rejoining the law abiding community? The answers to these questions will only be possible when every community has an effective, understandable intake process, a fair and efficient system of fact finding and adjudication, and a diverse menu of services and sanctions that are suitable for a wide range of offenders. Maintaining the juvenile court and its separate delinquency jurisdiction may have once guaranteed this for young people, but the benefits are far less certain today. Because of the recent decreases in juvenile violence it should offer the nation's policy makers an opportunity to introspectively reflect on how they have changed the juvenile court and what its future should be. It is also a good time to ponder and ask whether a separate system of juvenile justice is fact sustainable, either legally or politically, and if not, what can state and local officials do to design a new system to meet the needs of youth and their communities during the next century (Butts, 2000, p. 8).

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