II. Historical Background
The ways that juvenile delinquency has been defined, perceived, and responded to have changed over time and generally reflect the social conditions of the particular era. During the colonial era of the United States, for example, the conceptualization of juvenile delinquency was heavily influenced by religion. At this time, juvenile delinquency was viewed as not only a legal violation, but also a moral violation. Delinquent acts were viewed as affronts to God and God’s law, and as such, wrongdoers were treated in very punitive and vengeful ways.
American colonial society was similarly harsh toward children and the control of children’s behavior. Throughout society, there was a general notion that children were particularly susceptible to vice and moral violations. For instance, in 1641, the General Court of Massachusetts Bay Colony passed the Stubborn Child Law, which stated that children who disobeyed their parents would be put to death. The language and the spirit of the law were drawn from the biblical Book of Deuteronomy. The Stubborn Child Law descended from the Puritans’ belief that unacknowledged social evils would bring the wrath of God down upon the entire colony. The Puritans believed they had no choice but to react to juvenile misbehavior in a severe and calculated manner. However, not all colonies adopted the Stubborn Child Law. Outside Massachusetts, children found guilty of a serious crime frequently were punished via corporal punishment, which is the infliction of physical pain such as whipping, mutilating, caning, and other methods.
What would today be considered normal and routine adolescent behavior, such as “hanging out with friends,” was in early eras considered serious delinquent behavior, such as sloth and idleness. Today, the use of a death penalty or beatings for minor types of delinquency seems shocking; however, there are similarities between colonial juvenile justice and contemporary juvenile justice. In both eras, adult society held ambivalent views about children. On one hand, children and adolescents were seen as innocents that were not fully developed and required compassion, patience, and understanding. From this perspective, the response to juvenile delinquents should be tempered, tolerant, and used to teach or discipline. On the other hand, children and adolescents were viewed as disrespectful, annoying, and simply different from adults. It was believed that children were born in sin and should submit to adult authority.
Over time, the puritanical approach to defining, correcting, and punishing juvenile delinquency came under attack. Not only had these severe forms of juvenile justice failed to control juvenile delinquency, but also they were portrayed as primitive and brutal. In 1825, a progressive social movement known as the Child Savers changed the course of the response to juvenile delinquency and made corrections a primary part of it. Rather than framing juvenile delinquency as an issue of sin and morality, the Child Savers attributed it to environmental factors, such as poverty, immigration, poor parenting, and urban environments. Based on the doctrine of parens patriae, which means the state is the ultimate guardian of children, the Child Savers sought to remove children from the adverse environments that they felt contributed to children’s delinquency.
The Child Savers actively pursued the passage of legislation that would permit placing children in reformatories, especially juvenile paupers. The goal of removing children from extreme poverty was admirable, but resulted in transforming children into persons without legal rights. Children were placed into factories, poorhouses, and orphanages where they were generally treated poorly and where almost no attention was given to their individual needs. The first and most infamous of these facilities was the New York House of Refuge, which opened in 1825 and served to incarcerate thousands of children and adolescents viewed as threats to public safety and social order.
Another curious response to juvenile delinquency during this era was the use of transport. For example, between the 1850s and the Great Depression, approximately 250,000 abandoned children from New York were placed on orphan trains and relocated to locations in the West where they were adopted by Christian farm families. The process of finding new homes for the children was haphazard. At town meetings across the country, farming families took their pick of the orphan train riders. Children who were not selected got back on board the train and continued to the next town. The children who were selected and those who adopted them had one year to decide whether they would stay together. If either decided against it, the child would be returned, boarded on the next train out of town, and offered to another family.
Progressive reformers continued looking for new solutions to the growing problem of juvenile delinquency. Their most significant remedy was the creation of the juvenile court in Cook County, Illinois, in July 1899 via the passage of the Chicago Juvenile Court Act. The juvenile court attempted to closely supervise problem children, but unlike the houses of refuge, this new form of supervision was to more often occur within the child’s own home and community, not in institutions. In the juvenile court, procedures were civil as opposed to criminal, perhaps because social workers spearheaded the court movement. They thought that children had to be treated, not punished, and the judge was to be a sort of wise and kind parent. The new court segregated juvenile from adult offenders at all procedural stages.
The juvenile court reaffirmed and extended the doctrine of parens patriae. This paternalistic philosophy meant that reformers gave more attention to the “needs” of children than to their rights. In their campaign to meet the needs of children, the Child Savers enlarged the role of the state to include the handling of children in the judicial system. Because of its innovative approach, the juvenile court movement spread quickly, and by 1945, all states had specialized juvenile courts to respond to juvenile delinquency.
As juvenile courts across the United States continued in operation, two concerns emerged that would later motivate additional reforms. First, the informality of juvenile proceedings was seen as good in that justice could be tailored to the needs of individual youth. However, the informality also invited disparate treatment of offenders. The second and related point was that the juvenile court needed to become more formalized to ensure due process rights of delinquents that were comparable to the due process rights of adults in the criminal courts. These rights were established in a series of landmark cases during the 1960s and early 1970s.
An important milestone in the history of juvenile delinquency occurred in 1974 with the passage of the Juvenile Justice and Delinquency Prevention Act. This act was the most sweeping change in juvenile justice since the founding of the juvenile court. There were five major points of the Juvenile Justice and Delinquency Prevention Act. First, it mandated the decriminalization of status offenders so that they were not considered delinquent. Second, it mandated the deinstitutionalization of juvenile corrections so that only the most severe juvenile delinquents would be eligible for confinement. In addition, the act mandated that status offenders should not be institutionalized and that juveniles in adult jails and prisons should be separated by sight and sound from adults. Third, it broadened use of diversion as an alternative to formal processing in juvenile court. Fourth, it continued application of due process constitutional rights to juveniles. Fifth, it created the federal Office of Juvenile Justice and Delinquency Prevention (OJJDP), which funded research to evaluate juvenile justice programs and disseminated research findings on the juvenile justice system.
The Juvenile Justice and Delinquency Prevention Act was modified in 1977, 1980, 1984, 1988, and as recently as 2002. For instance, in 1980 the act specified the jail and lockup removal requirement, which meant that juveniles could not be detained or confined in adult jails or lockups. Adult facilities had a 6-hour grace period to ascertain the age of the offender or transport the youth to a juvenile facility. (Rural jails had up to 48 hours.) In 1988, the act specified the disproportionate minority confinement requirement, which required juvenile corrections to gather data on the racial composition of their population compared to the racial composition of the state. In 2002, this was changed to disproportionate minority contact, whereby racial data were mandated for all aspects of the juvenile justice system. Correctional systems must comply with OJJDP guidelines to remain eligible for federal allocations from the Formula Grants Program.
Beginning in the 1960s and continuing until the early to mid-1990s, the United States experienced dramatic increases in the most serious forms of juvenile delinquency, such as murder, and an increasingly visible juvenile gang problem in major American cities. As a result, states enacted more legislation that targeted youths involved in the most serious types of juvenile delinquency. During the 1990s, 45 states made it easier to transfer juvenile offenders to adult criminal courts. Thirty-one states expanded the sentencing options to include blended sentencing, which allows juvenile courts to combine juvenile and adult punishment that is tailored to the needs of the individual offender. For instance, juvenile courts can combine a juvenile disposition with a criminal sentence that is suspended. If the delinquent complies with the juvenile disposition, the criminal sentence is never imposed. If not, the youth is eligible to receive the adult sentence.
In 34 states, there are “once an adult, always an adult” provisions that specify that once a youth has been tried as an adult, any subsequent offenses must also be waived to criminal court. Laws have been modified to reduce or remove traditional juvenile court confidentiality provisions and make juvenile records more open in 47 states. In 22 states, laws have increased the role of victims of juvenile crimes by allowing them more voice in the juvenile justice process.
Nationwide, adolescents account for about 1% of new court commitments to adult state prisons. This means that more than 4,000 adolescents are in adult prisons because they have been convicted of the most serious forms of delinquency, which includes offenses such as armed robbery, assault, burglary, murder, and sexual assault. More punitive measures such as waivers are justified based on the serious violence and chronic delinquencies of the most serious offenders; however, some of these provisions carry unintended consequences. For example, research suggests that youths who are waived to criminal court and receive adult punishments ultimately have higher recidivism levels than youths that receive juvenile court dispositions.
Over the past 20 years, American society has also struggled to understand the place of capital punishment as a way to punish the most violent juvenile delinquents. In 1988, in Thompson v. Oklahoma, the Supreme Court held that imposing the death penalty on a person who was 15 years at the time of his or her crime violated the Eighth Amendment’s prohibition against cruel and unusual punishment. One year later, in Stanford v. Kentucky, the Supreme Court held that no consensus exists that forbids the sentencing to death of a person that commits capital murder at age 16 or 17. That changed in 2005 with the landmark case Roper v. Simmons, which rendered capital punishment unconstitutional as applied to persons under age 18. The Roper decision invalidated the death penalty for juveniles, which is a far different approach from earlier eras. According to the Supreme Court, several factors contributed to a changing consensus about applying the death penalty to juveniles, including the fact that several states had abolished the juvenile death penalty in the intervening years since Stanford; most states that retained the juvenile death penalty basically never used it; the juvenile death penalty was not used in most parts of the Western world; and there was greater appreciation for the developmental differences between adolescent and adults in terms of decision making, emotional and behavioral control, and other neurocognitive factors that influence criminal decision making.
It is conventional wisdom within criminology to lament the increasing toughness or punitive stance that society takes toward juvenile delinquents, primarily through the process of transfer to criminal court. But it should be noted that the last 40 years of juvenile justice reflect a profound commitment to due process and the legal rights of adolescents, the abolishment of the juvenile death penalty, and a general hands-off policy stance toward status and low-level delinquents. Indeed, the juvenile justice system and particularly juvenile corrections have noted the diversity of the juvenile delinquent population and have focused resources disproportionately toward the most serious youths.