The latter part of the twentieth century brought with it a rise in the rate of officially recorded juvenile crime and its subsequent criminalization through legal procedures in juvenile and criminal court. Perceived and real changes in juvenile crime have had implications for the way that the police and other officials confront troubled youth. More so today than in previous generations, police officials must make difficult decisions to arrest a juvenile as a status offender, delinquent, or criminal. In some states, the legal ways of defining troubled juveniles are quite complex, requiring consideration of such categories as “restrictive juvenile delinquent” or “youthful offender.” An important question that needs to be repeatedly addressed is why these legal categories have emerged, and how they may relate to the current state of criminalization and to police decision making.
Juveniles who are charged as juvenile offenders, youthful offenders, or criminal offenders are today subject to a criminalized legal process. But this was not always the case. In the latter part of the nineteenth century, institutions devoted specifically to the education and treatment of juveniles began to emerge. The juvenile court was just one of those institutions. The juvenile court responded to society’s emerging need to treat juveniles as different from adults. The reasons are many, but one important reason for criminal justice officials is that it became increasingly difficult for police officers and prosecutors to charge juveniles in criminal court. To many jurors and criminal court judges, juveniles late into adolescence looked more like children than adults. Criminal justice officials began to advocate for another legal setting that would take into account the fact that juveniles were different from adults.
Decriminalization
The social reformers who created the first juvenile courts advocated a nonadversarial process in which decision making was to be guided by pursuit of the “best interests” of the child. The purpose of this newly created civil court was not to punish, but to treat the determinants of the juvenile’s offensive behavior. The juvenile court was accepted as a reform because it was not only viewed as being in the best interests of the juvenile, but also as in the best interests of the state. The less severe penalties of juvenile court and its informal legal procedures made it easier to implement government forms of control through status-offense categories, probation, and reformatories. Acts of crime committed by young people were subsequently considered acts of delinquency.
Criminalization
The informal, nonadversarial administrative procedures of the juvenile court came under attack in the United States and in other countries when juvenile crime commissions, state legislators, and academic commentators viewed its rehabilitative model as no longer appropriate for juveniles charged with serious offenses. The first major reform occurred when the U.S. Supreme Court for the first time in its history considered in 1966 the case of Morris Kent. The court did not question the appropriateness of Kent’s punishment for rape and burglary. After all he was a chronic delinquent who the court viewed at the age of sixteen as an inappropriate candidate for treatment in juvenile court. Instead, the court focused on the administrative procedure for transferring Kent to criminal court without an adversarial hearing in juvenile court. The majority of Supreme Court justices agreed for the first time in U.S. history that the constitutional due process rights of a juvenile had been violated. The Court stated essentially that Kent should have been provided with a hearing in juvenile court where he was represented by legal counsel.
The next year the U.S. Supreme Court went a step further in expanding the possible list of constitutional rights for juveniles in its 1967 Gault decision. In the case of a juvenile who was incarcerated for an obscene call, the Court ruled that juveniles have the right to legal representation in all cases of delinquency. The Gault decision moved the juvenile court away from its creator’s vision of a traditional nonadversarial, civil court to a court that more closely resembled a criminal court. Scholars such as Barry Feld (1999) referred to the Kent and Gault decisions as “criminalizing” the juvenile court.
Waiver Legislation
The criminalization of the juvenile court is just one part of the story. Legal procedures remained mainly confidential and the Supreme Court rejected mandating that juvenile courts look exactly like criminal courts. For example, the Court rejected for juveniles the right to a trial by jury. In other words, the Supreme Court wanted to maintain a juvenile court but it also wanted certain legal procedures that would provide delinquents with a fair trial within its rehabilitative mandate. But to many, the social welfare and justice models were like mixing water and oil. To some policy makers concerned about rising rates of juvenile crime, the juvenile court needed to act more like a criminal court not only in its legal procedures, but also in the kinds of penalties that it implemented to prevent and control juvenile crime.
A growing number of critics of the juvenile court and state legislators also argued that the juvenile court was inappropriate for those juveniles who committed serious offenses. They felt that such juveniles did not deserve the treatment-oriented procedures of a juvenile court, and should be sentenced directly in adult criminal court. In many states, this was always the case for older juveniles who were charged with homicide. But criminalization went a step further by requiring the police and other officials to consider younger juveniles for a wider range of offenses. The popularized adage ”old enough to do the crime, old enough to do the time” reflected public and official sentiment to criminalize juvenile crime.
But the particular form of criminalization may have appeared especially harsh on juveniles and officials who were required to implement newly created juvenile justice reforms. This came a decade after the Gault decision in the form of automatic waiver or waiver by offense categories. Recall that Kent mandated a hearing in juvenile court. Automatic waiver legislation bypassed the juvenile court by requiring the police to arrest an eligible juvenile as if he or she were an adult and for prosecutors similarly to charge the arrested juvenile in criminal court. Certain conditions were required, such as that the offense be one for which the juvenile could be considered criminally responsible. These vary from state to state and depend on the particular legal statutes and the range of ages and offenses for which juveniles could be considered as if they were adults.
Offense-based forms of legislative waiver became increasingly popular so that every state in the United States soon found itself with new rules for bringing juveniles into criminal court. The particular form of legislation depends on the state’s unique history of juvenile justice and its political and organizational concerns and interests. Political interests were satisfied by showing the public that officials were willing to address the problem of rising rates of violent juvenile crime. Organization interests were satisfied by providing officials with a new legal avenue in which to implement the threat of harsher forms of governmental control. New forms of waiver may have saved the juvenile court by eliminating from its population the more difficult, chronic delinquents. Juvenile courts were now able to treat less serious delinquents and consequently increase their levels of success.
Criminologically, there is no convincing evidence that criminalization in the form of adult court and harsher penalties reduced rates of violent juvenile crime. Moreover, it can be suggested that crimi-nalization has increased the uncertainty of punishment for serious delinquents by subjecting them to a criminal court where they do not look as serious as older, adult offenders. Holistic processing theory would suggest that the likelihood of punishment is greater in a juvenile court where chronic delinquent behavior is viewed as particularly serious in relation to more trivial acts of delinquency. Indeed, the threat of criminalization can be viewed as more “bark” than “bite.” The harsher penalties of criminal court are viewed by officials as inappropriate for many less serious delinquents. Like those at the turn of the century, prosecutors may realize that they would have a hard time convincing a judge or jury that the juvenile is deserving of the same kind of penalties as an adult. Also police officers in arrest situations may reduce the severity of the charges knowing that the juvenile might be placed in the adult legal system. There is evidence that this is indeed the case based on research that Singer (1996) had conducted showing that only 25% of eligible juvenile offenders are convicted in criminal court. In contrast, the vast majority of similarly charged adult offenders are convicted in criminal court. Every state has “reverse” waiver procedures that allow criminal justice officials to indicate that it is more appropriate for the juvenile to be charged in juvenile court. This safety valve in the criminalization of juvenile justice can create opportunities for discrimination and disparities based on the characteristics of juveniles (Bishop 2000). Singer (1996) found this to be the case in New York where black juveniles were more likely to face conviction in criminal court for less serious offenses than white juveniles. Moreover, white juveniles were more likely to receive probation than black juveniles convicted in criminal court.
Consequences of Criminalization
Disparities in the administration of criminal justice for juveniles need to be examined more closely in a variety of legal settings and jurisdictional contexts. The proportion of juveniles who are subject to the harsh and stigmatizing effects of criminal punishment in the adult criminal justice system face lengthy periods of incarceration in maximum security juvenile and then adult prisons. They are deprived of normal adolescent experiences. Their attachments are now confined mainly to other inmates. Some of these juveniles will eventually leave as adults and desist from repeating their offenses, because they were too young to become committed to a life of crime or their families were there to support them. Others will never have the opportunity to have those normal adolescent social bonds, and will suffer the effects of long-term incarceration.
Of course, the debate is not over regarding how best to balance society’s best interests in preventing and controlling juvenile crime. Criminalization has not reduced the rate of crime based on quasi-experimental studies of juvenile crime rates in states with and without offense-based waiver legislation. However, criminalization has given juveniles the right to legal representation in juvenile court, and has contributed to a fairer justice system in the determination of delinquency. Few policy makers are willing to return to a traditional, nonadversarial juvenile court. The part of criminalization that is most troubling is the appropriate response to serious delinquent behavior. Moreover, the juvenile court is still viewed as the most appropriate legal setting for the vast majority of youth. The criminal court is seen as inappropriate for most of the troubling behavior of juveniles. The juvenile court seems better equipped to experiment with different kinds of treatment, such as restorative forms of justice that advocate bringing victims and offenders together. Furthermore, the therapeutic model has expanded in ways that take into account a new rehabilitative model that is open to adolescent social and psychological disorders, such as depression, attention deficit disorder, and learning disabilities. These are taken into account in a juvenile court that is geared toward the treatment-oriented judgments of professionals. The best forum for doing so is not an adversarial criminal court, but a court that still is guided by the principle of pursuing the ”best interests” of the child. In returning juvenile justice back to the juvenile court, McCord, Widom, and Crowell (2004) confirmed repeatedly what many police officers on the beat and parents have long noted: that kids are different, they behave differently, and that our response should take into account that they are not yet fully responsible adults.
