Juveniles and Community Corrections

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Corrections in the Community.

© 2011, Elsevier Inc. All rights reserved. 117

Chapter 5

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When we are out of sympathy with the young, then I think our work in the world is over.

—George MacDonald

the Juvenile Crime problem The challenge of crime in the United States remains a major social problem that has serious and sometimes deadly consequences; however, in the past half-decade, the size of the problem has abated as the nature of crime has changed. For example, the Federal Bureau of Investigation reports that the crime rate has continued to decreased between 1998 and 2008 (Federal Bureau of Investigation, 2009)(see Figure 5.1).

The juvenile crime rate is considered a problematic aspect of the crime problem. Youths under age 18 now commit almost one in six of the most serious crimes in the nation and account for nearly one-half of the arrests for arson and about one-quarter of the arrests for robbery, burglary, lar- ceny-theft, motor-vehicle theft, and property crimes (see Figure 5.2). Once arrested, many youths are then processed through the juvenile justice system.

Juveniles and Community Corrections

accountability

decarceration

deinstitutionalization

diversion

drug courts

Fourteenth

Amendment

juvenile court

parens patriae

selective incapacitation

status offender

waiver

Key terms

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Chapter 5: Juveniles and Community Corrections118

0 10 20 30 40 50

Property crimes

Violent crimes

All arrests

Murder

Aggravated assault

Forcible rape

Robbery

Larceny-theft

Burglary

Motor Vehicle Theft

Arson

Figure 5.2 Of total arrest in 2008, percent of arrests for juveniles. Source: Federal Bureau of Investigation (2009).

Figure 5.1 Crime index in the United States, 1998–2008. Source: Federal Bureau of Investigation (2009).

0

1

2

3

4

5

6

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Crime Index Rate per 100,000

Thousands

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The Juvenile Crime Problem 119

However, when arrests for juveniles are compared to those for adults over the last 20 years, the percentage of crimes committed by juveniles has been declining (see Table 5.1).

Much of the juvenile crime in the 1980s and early 1990s was due to the emer- gence of crack cocaine, juvenile gangs, and violence as major aspects of gang culture (Allen & Simonsen, 2001). These crime issues and changes caused the society as a whole to rethink rehabilitation, to advocate “get tough” approaches, to waiver in their acceptance of juvenile courts, and to bind juveniles over for trial in adult courts. Fortunately, most juvenile offenders who come to the attention of the juvenile court will receive treatment and noncustodial dispo- sitions. As was the case with adult offenders, the development of community corrections has led to probation, currently the most frequently used disposi- tion for juvenile offenders.

Probation for juvenile offenders is defined as a legal status created by a court of juvenile jurisdiction. It usually involves (President’s Commission, 1967:130):

1. A judicial finding that the behavior of the child has been such to bring him within the purview of the court

2. The imposition of conditions upon his continued freedom 3. The provision of means for helping him meet those conditions and

for determining the degree to which he meets them

table 5.1 Percentage of Juvenile Arrests (under 18) among All Arrests, 2000, 2004, and 2008

Offense 2000 2004 2008

Total 17 15 15

Murder 9 8 10

Forcible rape 16 17 15

Robbery 25 22 27

Aggravated assault 14 14 13

Burglary 33 28 27

Larceny-theft 31 28 26

Motor vehicle theft 34 26 25

Arson 53 52 47

Violent crimes 16 15 16

Property crimes 32 28 26

Source: Federal Bureau of Investigation (2009).

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Chapter 5: Juveniles and Community Corrections120

Probation thus implies more than indiscriminately giving the child “another chance.” Its central thrust is to give him or her positive assistance in adjustment in the free community.

historiCal baCKground The historical precursors of juvenile probation are as generally outlined earlier. The legal underpinnings of modern juvenile probation were estab- lished in England during the early Middle Ages, under the principle of parens patriae: “The King, being father of His country, must protect the welfare of the children.”

As with adult probation, John Augustus is viewed as the “father of juvenile probation,” as many of his charges were female juveniles in trouble with the law. His work contributed to development of the first visiting probation agent systems in Massachusetts (1869) and passage of the first enabling legislation establishing probation for juveniles (1878). In the same era, the Society for the Prevention of Cruelty to Children (1875) was established. Their proposed pol- icies and activism contributed directly to the first juvenile court in America spe- cifically set up to address the care, treatment, and welfare of juvenile offenders: the Cook County (Chicago), Illinois, juvenile court in 1899.

The Cook County juvenile court emerged from the concerns of a group of compassionate, humanitarian, and wealthy women in Chicago who wished each child to receive the care, custody, and treatment as their natural par- ents should have provided (Lindner & Savarese, 1984). The juvenile court was one project devised to attain these objectives1 and utilized individual- ized treatment based on extensive diagnosis of the child’s personality and needs, with the judge serving as a counselor to the patient (juvenile). It was

Juvenile probation is the oldest and most widely used vehicle through which a range of court- ordered services is rendered. Probation may be used at the “front end” of the juvenile justice system for first-time, low-risk offenders or at the “back end” as an alternative to institutional confinement for more serious offenders. In some cases, probation may be voluntary, in which the youth agrees to comply with a period of informal probation in lieu of formal adjudication. More often, once adjudicated and formally ordered to a term of probation, the juvenile must submit to the probation conditions established by the court.

box 5.1 Juvenile probation

Source: Office of Juvenile Justice and Delinquency Prevention (1996).

1Chicago courts continue to innovate to handle juvenile offenders. See U.S. Bureau of Justice Statistics (1994). For a critical view of the Illinois juvenile justice system, see Berger (1994). See also Geties (2000).

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Historical Background 121

widely argued that the juvenile court would safeguard presumed supercon- stitutional rights2 (the child would receive more than his or her just deserts) and avoid the stigma of criminal conviction through informal court proceed- ings based on benevolent attention, understanding the juvenile, humanitar- ian intervention, solicitous care, and regenerative and restorative3 treatment. To attain these objectives, procedural safeguards guaranteed under the U.S. Constitution were abandoned; the focus was on the child, not the deed. Box 5.2 contains three selected Amendments to the U.S. Constitution that pertain to rights guaranteed to adults.

Juvenile court proceedings were informal, conducted in the absence of legal counsel, closed to the public, and individualized to maximize guidance and outcome. To protect and serve the “best interests of the child,” records were confidential. Legal challenges were rare.

Juvenile courts were established quickly throughout the various states, federal government, and Puerto Rico. By 1927, all but two states had enacted enabling legislation establishing both juvenile court and proba- tion. The theoretical assumption of juvenile probation was that provid- ing guidance, counseling, resources, and supervision would assist low-risk juveniles to adapt to constructive living, thus avoiding the necessity of institutionalization.

2Critics argue that this has not happened. See Feld (1993); and Getis (2000). 3Umbreit (1994) See also Umbreit (1995); and Umbreit and Vos (2000).

Fourth amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describ- ing the place to be searched, and the person or things to be seized.

Fifth amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment of a Grand Jury, except in cases arising in land or naval forces, or the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor to be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

sixth amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state or district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and the cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

box 5.2 seleCted amendments to the u.s. Constitution

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Chapter 5: Juveniles and Community Corrections122

The primary goals of probation became to assist juveniles in dealing with their individual problems and social environments. Resolving underlying causes of the youthful offenders would permit their reintegration into the community. It was argued that probation, rather than incarceration, should be the disposi- tion of choice, because

1. Probation provides for community safety while permitting the youthful offender to remain in the community for reintegration purposes.

2. Institutionalization leads to prisonization, the process of learning the norm, and culture of institutional living (Clemmer, 1940). This decreases the ability of the juvenile to function as a law-abiding citizen when released, thus leading to further involvement as an adult offender.4

3. The stigma of incarceration is avoided (Schur, 1971). 4. The negative labeling effects of being treated as a criminal are avoided. 5. Reintegration is more likely if existing community resources are used

and the youth continues to engage in social and familial support systems (family, school, peers, extracurricular activities, employment, friends, etc.).

6. Probation is less expensive than incarceration, arguably more humanitarian, and is at least as effective in reducing further delinquent behavior as is institutionalization.5

The “child saving movement” underlying the development of the juvenile court is clearly seen here.6

the legal rights oF Juveniles It is obvious that the juvenile court, as it developed over the twentieth cen- tury, addressed juvenile offenders under civil rather than criminal procedures (civil suits deal with individual wrongs, whereas criminal prosecutions involve public wrongs). The most important objective of the original creators of the juvenile court was to create a separate court system for delinquent, dependent,

4The perceived relationship between juvenile delinquency and adult criminality has been seriously challenged by recent research. Arguing that evidence is not sufficient to establish accurate predictions about whether juvenile delinquents would eventually become adult offenders, Lyle Shannon also found that the relationship that does exist can, in large part, be explained by the effects of processes within the juvenile and criminal justice systems, as well as the continued delinquent behavior of the juvenile. See Shannon (1982). 5See Solomon and Klein (1983). 6Not all scholars agree that the moving force behind early juvenile court development was benevolent. For example, A.M. Platt believes that the rationale for saving youths was part of a larger social movement that attempted to strengthen the position of corporate capitalism in the United States. He argues that the juvenile court was a means of preserving the existing class system. See Platt (1977).

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The Legal Rights of Juveniles 123

and neglected children. Following the doctrine of parens patriae, the juvenile court system suspended or ignored the legal rights constitutionally guaran- teed to all citizens: the right to trial and against self-incrimination and other rights. Constitutional rights were thought unnecessary for juveniles, as the court would focus on and uphold the best interests of a child in a civil setting. Many juvenile judges and child advocates perceived inequity and attempted to provide constitutional safeguards. Beginning in the 1960s, questions about juvenile court proceeding fairness and the constitutionally guaranteed rights of juveniles were brought to the U.S. Supreme Court. Significant changes were made. It is necessary to review those decisions to comprehend their impact on the juvenile justice system, especially contemporary juvenile probation.

Kent v. United States

In 1966, the U.S. Supreme Court was asked to consider the issue of the transfer (“waiver”) of a juvenile to the criminal court system.7 The issue was the legis- lative waiver of the juvenile court procedures (Grisso & Schwartz, 2000). The court stated:

There is much evidence that some juvenile courts . . . lack the personnel, facilities, and the techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that here may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children (Kent v. United States, 1966).

This case portended more important issues on which the court was asked to rule (Merlo, Benekos, & Cook, 1997).

In re Gault

In 1967, the court decided its first major issue in the area of juvenile court pro- cedures. In Arizona, Gerald Gault, then age 16, allegedly telephoned a neighbor woman and used obscene phrases and words. The use of such language over the telephone violated an Arizona statute. Gerald Gault was subsequently adjudicated a juvenile delinquent after a proceeding in which he was denied basic procedural safeguards otherwise guaranteed to any adult. This landmark decision8 categorically granted the following to all juveniles charged with delinquent acts that might result in such grievous harm as commitment to a correctional institution:

7Lee (1994). See also Jenson and Metzger (1994); and Merlo et al. (1997). 8In re Gault, 387 U.S. 1 (1967). See also Sanborn (1994b); and Manfredi (1998).

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Chapter 5: Juveniles and Community Corrections124

1. Right to know the nature of the charges against them, to prepare for trial

2. Right to counsel 3. Right against self-incrimination 4. Right to confront and cross-examine accusers and witnesses

The Gault decision not only returned procedural rights to juveniles, it also ended the presumption that juvenile courts were beyond the purview and scope of due process protections (Sanborn, 1994a).9

In re Winship

This 1970 decision further defined the rights of juveniles. Proof used in a court finding of delinquency must show “beyond a reasonable doubt” that the juve- nile committed the alleged delinquent act (Sanborn, 1994b), the same proof standard used for adults in criminal trials. The court specifically found unper- suasive the argument that juvenile proceedings were noncriminal and intended to benefit the child (In re Winship, 1970).10 Currently, juveniles in juvenile court do not have the constitutional right to trial by jury (McKeiver v. Pennsylvania, 1971), although some states have extended this right to juveniles.

These three major decisions by the U.S. Supreme Court created the due process model for the juvenile court. The McKeiver decision seemed to indicate that the court was moving away from increased rights for juveniles, but in 1975 the court ruled in Breed v. Jones that once tried as a juvenile, a person cannot be tried as an adult on the same charges.11 In 1979 (Fare v. Michael C.), the court ruled on interrogation and indicated that a child cannot voluntarily waive his or her privilege against self-incrimination without first speaking to his or her parents and without first consulting an attorney.12 In 1984, the court distinctly departed from the trend toward increased juvenile rights by reaffirming parens patriae (Schall v. Martin, 1984). As Allen and Simonsen (1998:643) note:

As a result of Supreme Court cases, the juvenile court is now basically a court of law. . . .

9See also Sanborn (1994a); and Feld (1999). 10Historical data identifying main sources of the growth of juvenile prosecutions in London Court (1790-1820) can be found in King and Noel (1994). 11This would be a grievous case of double jeopardy. See also Sanborn (1994a). 12In Fare v. Michael C. (1979), a juvenile murder suspect consented to interrogation after he was denied the opportunity to consult with his probation officer. The U.S. Supreme Court ruled that there is no constitutional mandate to allow a suspect to speak with his or her probation officer. The court indicated that the trial court judge should take into consideration the totality of the circumstances of the youth’s waiver of his or her rights. Factors such as age, maturity, intelligence, and experience should be taken into consideration.

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The Legal Rights of Juveniles 125

Thus far, the procedural rights guaranteed to a juvenile in court proceedings are as follows:

1. The right to adequate notice of charges against him or her; 2. The right to counsel and to have counsel provided if the child is indigent; 3. The right of confrontation and cross-examination of witnesses; 4. The right to refuse to do anything that would be self-incriminatory; 5. The right to a judicial hearing, with counsel, prior to transfer of a

juvenile to an adult court; and 6. The right to be considered innocent until proven guilty beyond a

reasonable doubt.

Juvenile probation, as seen in court proceedings and used in juvenile courts, is currently vacillating between these two models (Rogers & Mays, 1987). On the one hand, we see liberal reformers who call for increased procedural and legal safeguards for juveniles; on the other hand, we have a conservative movement that focuses on the victim (Torbert, Gable, & Hurst, 1996) and seriousness of the crime (Clear & Cole, 1990).13 As one conservative put it, “You are just as dead if a 15-year-old shoots you as you are if a 25-year-old does.”14

13Berger (1994). Cohn is more pessimistic: Cohn (1994). 14See Sheley, McGee, Wright (1995). Bastian and Taylor (1994); and Rapp-Paglicci and Wodarski (2000).

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Chapter 5: Juveniles and Community Corrections126

CritiCisms oF the Juvenile Court and PARENS PATRIAE Criticisms of and disenchantment with the parens patriae juvenile court and its procedures (Moore & Wakeling, 1997) have been voiced by such groups as the American Bar Association, the judiciary, the federal government, practi- tioners, private nonprofit organizations, researchers, and voluntary organiza- tions, among others. Such efforts, when coupled with decisions by the U.S. Supreme Court, have created major changes in the juvenile justice system and particularly diversion of offenders, status offenders, decriminalization, and deinstitutionalization. We will see these changes as we review the contempo- rary juvenile justice system and juveniles in community corrections.

the Contemporary Juvenile JustiCe sCene Juvenile Court processing

Although there are some similarities between adult and juvenile systems, there are also some fundamental differences. Figure 5.3 shows a simplified ver- sion of case flow through the juvenile justice system. Figure 5.4 shows ages of juveniles upon referral to juvenile court. As has been the pattern for many decades, the highest rate was for 16 year olds, followed closely by 15 and then 17 year olds. Very few were under age 13.15 Figure 5.5 shows the referral

15Office of Juvenile Justice and Delinquency Prevention (1998).

Figure 5.3 The juvenile justice system flowchart. Source: Office of Juvenile Justice and Delinquency Prevention (2001).

Criminal justice systemDiversion

Statutory exclusionNon-law

enforcement services

Law enforcement

Diversion Detention

Diversion Dismissal

Prosecutorial discretion

Transfer to juvenile

court Judicial waiver

Prosecution Juvenile

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