Juvenile VS Adult Justice

[Note: The following information is from the PBS.org webpage]

Each state has its own distinct juvenile justice system with its own laws and practices. This chart outlines some of the broad underlying beliefs that distinguish the juvenile justice system from the criminal justice system. For further details about a particular state's juvenile court system, see the National Center for Juvenile Justice's "State Juvenile Justice Profiles." 

Juvenile Justice System

The underlying rationales of the juvenile court system are that youth are developmentally different from adults and that their behavior is malleable. Rehabilitation and treatment, in addition to community protection, are considered to be primary and viable goals. Limitations are placed on public access to juvenile records because of the belief that juvenile offenders can be successfully rehabilitated, and to avoid their unnecessary stigmatization. Court proceedings may be confidential to protect privacy. The juvenile justice system follows a psychological casework approach, taking into account a detailed assessment of the youth's history in order to meet his or her specific needs. The juvenile offender faces a hearing, rather than a trial, which incorporates his social history as well as legal factors.

Law enforcement has the option of preventative detention--detaining a youth for his own protection or the community's protection. Not all states afford juveniles the right to a jury trial. A juvenile offender is judged "delinquent" rather than "guilty." Because of the individualized nature of the juvenile justice system, sentencing varies and may cover a wide range of community-based and residential options. The disposition is based on the individual's offense history and the severity of the offense, and includes a significant rehabilitation component. The disposition can be for an unspecified period of time; the court can send a youth to a certain facility or program until it is determined he is rehabilitated, or until he reaches the age of majority. The disposition may also include a restitution component and can be directed at people other than the offender, for example his parents.

Parole combines surveillance with activities to reintegrate the juvenile into the community.

Criminal Justice System

Rehabilitation is not considered a primary goal in the criminal justice system, which operates under the assumption that criminal sanctions should be proportional to the offense. Deterrence is seen as a successful outcome of punishment. Open public access to criminal records is required, and all court proceedings are open to the public.

Defendants in the criminal justice system are put on trial, which is based largely on legal facts. Defendants have the right to apply for bond or bail. All defendants have a constitutional right to a jury trial. A defendant is found "innocent" or "guilty." The offender is sentenced to a specified period of time which is determined by the severity of the offense, as well as the defendant's criminal history. Parole is primarily based on surveillance and monitoring of illicit behavior.

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The century old idea in the United States that children and adolescents are less culpable and more able to be rehabilitated than adults who commit crimes has been giving way to a harsher view in recent years. Here's an overview of the evolution of society's attitudes on dealing with juveniles who commit serious crimes.

In 18th century America, little distinction was made in the criminal culpability of children versus adults. Juveniles as young as age seven could be tried and sentenced in criminal courts. As psychologists and sociologists began to recognize the emerging notion of adolescence as a developmentally distinct period of life, reformers argued that children should be removed from adult prisons.

In 1825, the Society for the Prevention of Juvenile Delinquency founded the New York House of Refuge, the first institution designed to accommodate juvenile delinquents. Many cities and states soon followed this example and set up similar institutions. Progressive era reformers wanted to attack what they believed were the roots of juvenile delinquency--a lack of moral education and standards--and advocated that juvenile institutions include a significant educational and rehabilitative component. For their efforts, the earliest juvenile justice reformers were known as "child savers."

The child savers' advocacy resulted in the establishment of the first juvenile court in Cook County, Illinois, in 1899. The court was established under the British legal doctrine of parens patriae -- "the State as parent" -- which was interpreted to mean that it was the state's duty not only to protect the public interest in juvenile offender cases, but also to intervene and serve as the guardian of the interests of the children involved. As opposed to the adversarial adult criminal system, where the state's role was to prosecute the offender, the juvenile court had a more benevolent mission: it was designed to be flexible, informal and to tailor to a juvenile's individual needs, with the ultimate goal of rehabilitation. The process was subject to strict confidentiality in order to avoid any unnecessary stigmatization of minors. Because its goal of rehabilitation was not considered to be punitive, the court had no due process protections, and had jurisdiction over both criminal and status offenders (a category which applies only to minors and includes offenses such as vagrancy and truancy.) Judges played a paternal role, and were afforded tremendous discretion in order to achieve the goal of individualized rehabilitative justice. By 1925, 48 states had established a juvenile court system, which operated quietly until mid-century.

During the 1960s, civil libertarians began to raise concerns about the progressive era model of juvenile justice. They argued that despite rhetoric to the contrary, juveniles within the system were not actually being rehabilitated, but rather warehoused in institutions not much different from an adult prisons. If juveniles were going to be treated as adults in the sentencing phase, the advocates argued, they should also be accorded the due process protections afforded to adults in court. They also challenged the broad discretion given to juvenile court judges. In a series of rulings during the 1960s and 1970s, The U.S. Supreme Court agreed; "There is evidence, in fact, that there 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," wrote Justice Abe Fortas in Kent v. United States. In decisions such as Kent, In re Gault and In re Winship, the Supreme Court ruled that juveniles must be afforded due process protections including: formal hearings when facing waiver to criminal court; protection against self-incrimination; the rights to notice of charges, counsel, and cross-examination of witnesses; and adherence to the "proof beyond a reasonable doubt" judicial standard.

In the early 1970s, several class-action lawsuits attacked the conditions and policies of the juvenile institutions, alleging cruel and unusual punishment. Social critics advocated deinstitutionalization and argued for more preventative and community-based programs to assail the roots of juvenile delinquency, particularly in urban areas. In 1974, Congress passed the Juvenile Justice and Delinquency Prevention Act, which still governs the juvenile justice system today. The act required the separation of juvenile offenders from adult offenders, and the deinstitutionalization of status offenders. A 1980 amendment mandated that juveniles could not be placed in adult jails, with a few exceptions. The 1974 act also created the federal Office of Juvenile Justice and Delinquency Prevention (OJJDP) and offered grants to encourage states to develop community-based programs as alternatives to institutionalization. Law enforcement experimented with the introduction of community-based correctional facilities, such as group homes and halfway houses.

However, this preventative approach to the delinquency problem was shortlived. In the mid-1970s, as the media began to highlight rising violent crime rates, the American public demanded the conservative "get tough" approach to crime still widely endorsed today. State legislatures reacted to the public's demands for accountability by passing more punitive juvenile justice laws. The conservative trend continued in the 1990s: almost every state passed laws making it easier to try juveniles in adult criminal courts; 31 states passed laws expanding sentencing options; 47 states modified confidentiality provisions for juvenile courts; and 22 states passed laws increasing the victim's role in juvenile court processing.

More than any time in recent history, the system is turning back toward treating juvenile offenders like adults.

Juveniles in Adult Prisons and Jails

Since 1992, 45 states have passed or amended legislation making it easier to prosecute juveniles as adults. The result is that the number of youth under 18 confined in adult prisons has more than doubled in the past decade. This phenomenon is challenging the belief, enshrined in our justice system a century ago, that children and young adolescents should be adjudicated and confined in a separate system focused on their rehabilitation.

      In 1997, the Bureau of Justice Assistance funded a nationwide study of juveniles in adult correctional facilities to help policymakers and criminal justice practitioners form an effective response to this critical issue. Juveniles in Adult Prisons and Jails: A National Assessment is the product of that study. This report begins to answer important questions about this vulnerable population: What is the extent of juvenile confinement in federal, state, and local facilities? What types of facilities are used to house juvenile offenders? What happens to juveniles in the adult system? Are juveniles in adult facilities educated, treated for substance abuse, and taught skills that will help them find a job after their incarceration? Are prisons and jails protecting young offenders from physical, sexual, and psychological abuse? What are the alternative strategies for housing offenders sentenced to long terms in adult facilities?

      As the findings of this study show, there are important steps we can take now to improve the well-being of juvenile offenders in adult facilities. We can develop specialized vocational, sex offender, and substance abuse programs tailored to the developmental needs of youth. We can ensure that staff in adult facilities take seriously their federal mandate to provide regular and special education services to youth in their care. And we can do much more to ensure the safety and care of young offenders who interact with adult offenders.

      The development of a distinct justice system tailored to recognize the mitigating factors associated with juvenile crime is recognized as one of the most progressive developments in the evolution of criminal justice in the United States. Until the 20th century, no formal differentiation had been made between society’s response to crimes committed by juveniles and its response to crimes committed by adults. Beginning in Illinois in 1899, juvenile court systems were instituted throughout the United States to place greater emphasis on the welfare and rehabilitation of youth in the justice system. Specialized detention centers, training schools, and youth centers were developed to confine and treat delinquent youth apart from adult offenders.

These facilities were to provide a structured, rehabilitative environment in which the educational, psychological, and vocational needs of youthful offenders could be addressed. Although system crowding and funding shortfalls have frequently compromised achievement of these objectives, the goal of the juvenile court system has remained focused on protecting the welfare of youthful offenders.

      This concept of a distinct justice system for juveniles focused upon treatment has come under attack in recent years. Beginning in the late 1980s, communities across the nation began to experience dramatically increased rates of juvenile crime. The arrest rate for violent crimes of both males and females began to increase in 1987 and continued to escalate until the mid-1990s. Although this trend appears to have reversed, rates of serious crimes committed by juveniles remain well above historical levels.

      The increasing incidence and severity of crimes committed by juveniles led many to question the efficacy of the juvenile court system and to call for a harsher response to juvenile crime. Juvenile delinquency that results in serious offenses has come to be viewed as more a criminal problem than a behavioral problem, resulting in a shift in public response to the management of juvenile offenders. Researchers have noted this shift in trends toward more arrests, longer periods of incarceration, fewer opportunities for rehabilitation, and, most significantly, increases in the transfer of juveniles to the adult criminal justice system.

      Juveniles are increasingly placed in adult correctional facilities. Concerned that the juvenile justice system may be ill equipped to handle youth charged with serious crimes and that the juvenile court may be too lenient in its punishment and control of such youth, many states have begun amending their criminal codes so that youth charged with certain crimes can be tried in adult courts and sentenced as adults.

What can the legislature do to improve collaboration among the stakeholders that must be involved in efforts to improve the lives of children of incarcerated parents?

Many—if not most—of the policy actions described above require the active involvement of multiple systems working together to achieve positive results for the children of imprisoned parents. As in other areas of human services, however, such collaboration may first require action on the part of policymakers, including state legislators. Some experts on children of incarcerated parents have noted that legislation is needed at both the state and federal levels to fully address the complex range of issues facing incarcerated parents and their children.

To lay the groundwork for such collaboration, an initial approach legislators might consider is a broad statement of legislative intent that the relationship between an incarcerated parent and his or her child should be recognized, preserved and strengthened when in the best interest of the child. Such statement of intent could be coupled with two requirements:

• That all systems that touch the lives of such children and parents—including law enforcement, corrections,

child welfare, education and the judiciary—jointly assess the effects of their policies, programs and practices

on children of incarcerated parents; and

• That these various state agencies undertake to collect, share, analyze and regularly report on data regarding children of incarcerated parents to better understand their service needs and the needs of their caregivers.

In the past decade, legislatures in several states have required broad-based policy reviews, multidisciplinary planning, and data collection to address the issues facing children of incarcerated parents.

• In 1998, the Missouri legislature required the state Children’s Services Commission to evaluate state laws

and policies that affect incarcerated parents and their children and to recommend legislative proposals and

state and local programs to respond to the needs of such children.

• In 2001, Oregon established by legislation a planning and advisory committee to make recommendations

on how to increase family bonding for children of incarcerated parents. The legislation required representation by the corrections department, the state youth authority, the state court administrator, the state Commission on Children and Families, the Department of Education, the Department of Human Services, and several local boards and councils. The committee issued a report to the legislature in 2002,66 and in 2005, the legislature extended the committee through the 2005-2007 biennium.

      As one of the first states to address this issue at a high level, Oregon is now considered a national model for inter-agency collaboration and innovation. Oregon’s effort began in 2000 with a Children’s Project work group consisting of over 20 organizations. The work group focused on changes in the prison system to include parent education classes, a therapeutic child-centered facility to serve children of female inmates, and improved policies regarding contact and visitation.

• Hawaii adopted a resolution in 2005 requesting the departments of public safety and human services to form a task force to identify and develop appropriate programs and services for children of incarcerated parents and to provide support for incarcerated parents, where appropriate. The task force issued a report to the Legislature,71 and was extended through 2012.

      Hawaii also enacted legislation in 2008 to articulate guiding principles for use by state agencies when dealing with children of incarcerated parents. The principles were adapted from the Incarcerated Parents Bill of Rights created by the San Francisco Children of Incarcerated Parents Partnership. The principles include “children should be kept safe and informed at the time of the parent’s arrest;” “the children’s wishes should be taken into consideration regarding any decisions made concerning their welfare;” “if the children so choose, communication avenues should be made available such that children should have opportunities to see, speak to, or visit parents, where appropriate,” and “children should receive support for the desire to retain a relationship with an incarcerated parent, where appropriate.”

• In 2005, Washington required the Department of Corrections and the Department of Social and Health Services to establish an oversight committee to develop an inter-agency plan for services and supports to children with incarcerated parents. Washington followed up on its 2005 legislation with a 2007 law that requires a broad array of agencies—including corrections, social services, education, early learning and economic development—to adopt policies to encourage familial contact between inmates and their children, facilitate normal child development, and reduce recidivism and inter-generational incarceration. These agencies also must gather and evaluate data on children of incarcerated parents. Finally, the law requires creation of an advisory committee to gather the data collected by the departments, monitor implementation of existing recommendations, identify needs, and provide advice regarding funding of community programs. The state budget for the 2007-2009 biennium contains $1.086 million, divided among various departments, to fund this legislation.

      Pursuant to the legislation, the Washington Department of Social and Health Services embarked on a

comprehensive analysis of administrative data to determine the extent services are received by children and

families of incarcerated parents and to identify the social service systems that are involved with such families.

Department staff also prepared an excellent policy paper on the issue.

• In 2007, the Virginia General Assembly required that an integrated system be established to coordinate planning and service provision so children and their incarcerated parents could maintain their relationships.

• The Vermont legislature required in 2008 that the Corrections Oversight Committee investigate issues regarding children of incarcerated parents and make recommendations on how to increase appropriate contact between minor children and their parents. The committee also was to determine data that should be collected to enable the legislature to better understand the effects of parental incarceration on minor children,

among other things.

• Also in 2008, the Tennessee legislature passed a joint resolution urging the state Department of Corrections to examine the Children of Incarcerated Parents Bill of Rights and to incorporate appropriate principles to help the state achieve its goal to eliminate inter-generational crime.

      State legislators also can initiate a dialogue about changing the cultures of disparate systems to ensure that the needs of children of incarcerated parents do not get lost between agencies. Even without legislation, the attention and influence of state legislators could help change attitudes that have hindered better results. The culture and mission of the correctional system, for example, could be expanded to include reducing recidivism and improving public safety by facilitating maintenance of parent-child relationships during a parent’s imprisonment. The culture and mission of child welfare could be changed so that parental incarceration no longer is viewed as an automatic bar to providing reunification services and regular visitation. Juvenile and family court judges could be encouraged to hold child welfare agencies accountable for maintaining connections between a child in foster care and an incarcerated parent and delivering appropriate reunification services to the parent when it is in the child’s best interest.

      The many issues that face children of incarcerated parents and their families are complex and cross the jurisdictional boundaries of multiple agencies and service systems. In addition, thoughtful policy making in this area is hindered by lack of reliable data on the characteristics of these children and a paucity of sound research on both the effects of parental incarceration and the effectiveness of interventions. Nevertheless, a growing number of state policymakers are taking an active interest in helping children of incarcerated parents. This paper provides a preliminary framework for those who must deal with this critical policy issue.