The concept of individualized justice has remained the hallmark of the juvenile justice system since inception and has clearly differentiated it from the criminal justice system. Although the juvenile justice court considers the facts of the offense when determining the proper disposition of a juvenile justice case, the juvenile justice court is not driven by the offense, but instead, by the specific needs and circumstances of the individual youth. Thus the original design of the juvenile justice court optimized its chances of providing community safety by imposing consequences that have the best chance of producing change in each youth.

As we reach for system improvement, it is helpful to review the past practices of our over 100-year-old United States juvenile court system. Prior to the establishment of its first juvenile justice court, America followed legal traditions inherited from England.

These traditions categorized people as “infants” or “adults” and allowed three options for children and youth who broke the law:

• Any child below age seven was presumed to be incapable of criminal intent and conclusively exempt from prosecution and punishment.
• Children ages seven through 14 could invoke the “infancy defense” and try to convince the court of their incapacity for criminal intent. The prosecutor would counter such a defense to show criminal capability, and if successful, the child would face criminal penalties, including imprisonment or death.
• Children over the age of 14 were always prosecuted and punished as if they were adult criminals.

In the 1800s, believing that animals were treated better than children, members of the Society for the Prevention of Cruelty to Animals started a movement for prevention of cruelty to children, a movement that helped establish separate courts for juveniles and adults. The first juvenile court in the United States, authorized by the Illinois legislature, began operation in 1899 in Cook County (Chicago), Illinois. The legislation that created this court included a comprehensive set of definitions and rules “to regulate the treatment and control of dependent, neglected, and delinquent children.” The court was charged with promoting the welfare of children in trouble, to avoid the stigma of crime and criminality, and to “as far as practical, treat children not as criminals but as children in need of aid, encouragement and guidance.” The laws were to be “liberally construed,” to accomplish the goal that the “care, custody, and discipline” of these children “shall approximate as nearly as may be that which should be given by parents.”

By 1925, following Illinois’ lead, all but two states had established juvenile courts based on the British doctrine of parens patriae (the state as parent). This doctrine gave government the right to intervene in the lives of children, with or without the consent of parents. This approach included the concept of individualized justice – not every child in every situation should receive exactly the same response. The focus was on the offender and not the offense, on rehabilitation instead of punishment. The court was responsible for balancing the needs of children, their families, and their communities. This approach produced court processes such as:

• The juvenile justice court controlling its own intake, as opposed to the criminal court, where grand juries and prosecutors controlled intake;
• The option of handling cases informally as opposed to formally;
• Less formal hearing procedures;
• Confidential proceedings;
• The absence of attorneys except in trials or the most serious cases; and
• Dispositions based on perceived remedial need instead of automatic dispositions determined by the offense.

Three U.S. Supreme Court decisions caused the pendulum to shift in the 1960s and 1970s away from part of the parens patriae doctrine. These decisions responded to concerns that the rights of youth were being trampled, and that parens patriae and unbridled judicial discretion, however benevolently motivated, were arbitrary and unfair. These decisions were:

• Kent v. United States (1966) established that transfer to criminal court must consider due process and fair play, and that the youth must be represented by an attorney who must have access to the youth’s juvenile records.
• In re Gault (1967) established that juveniles had the constitutional right to notice of the proceedings, the right to counsel, the right to confront and cross-examine accusers, the right against self-incrimination (i.e., the right to remain silent), and the right to appeal a decision of the juvenile justice court. Aggregately, these rights are referred to as due process rights.
• In re Winship (1970) changed the burden of proof from preponderance of evidence to proof beyond a reasonable doubt.

In contrast to this shift, however, McKeiver v. Pennsylvania (1971) moved in the opposite direction when the U.S. Supreme Court determined that in juvenile proceedings there was no right to trial by jury.

The Juvenile Justice and Delinquency Prevention Act of 1974 (Act) was passed for a number of reasons. First, during this period, juvenile justice court purpose clauses began to use words such as “punishment” and “accountability,” and juvenile justice court process focused more on the criminal nature of delinquent acts and adopted essential due process rights accorded to criminal court defendants. This shift caused mounting concern that youth who had committed acts which would not be considered criminal if committed by adults – referred to as status offenders – should be protected from inappropriate juvenile justice court responses. The JJDP Act limited the placement of status offenders in secure detention or correctional facilities. There was also concern that alleged and adjudicated delinquents were being harmed by contact with alleged and convicted adult criminals in adult jails, lockups, and other institutions. Consequently, the JJDP Act required that juvenile offenders be removed from adult jails and separated from adults in institutional settings.

Amendments to the Juvenile Justice and Delinquency Prevention Act

• In 1980, Congress amended the Act to allow the secure detention of status offenders who had violated valid court orders.
• In 1984, Congress amended the Act to define valid court order and to refine other concepts.
• In 1992, Congress amended the Act to add programs to address gender bias, prevention, treatment, graduated sanctions, and risk assessments/needs assessments.
• In 1998, Congress amended the Act to address disproportionate minority confinement. Throughout the history of the juvenile justice court, juvenile offenders have represented all ethnic backgrounds and all socioeconomic levels. However, the juvenile justice court has been challenged throughout its years with the dynamic of racial and ethnic disparities involvement in the juvenile justice system.
• In 2002, Congress continued the four core elements of the previous Acts and amendments – specifically, deinstitutionalization of status offenders, separation of juveniles and adults in secure institutions, removal of juveniles from adult jails and lockups, and reduction of racial and ethnic disparities where it exists; and added emphasis on the link between child abuse and neglect and delinquency, with a new requirement that child welfare records should be available to the juvenile justice court system so that the youth’s best interest would be considered when the juvenile justice court made decisions.

https://ojjdp.ojp.gov/about/legislation

The next pendulum swing began in the mid-1980s in response to a rapid escalation in the volume and seriousness of youth crime. There was a growing public perception that juvenile justice courts were “soft” in their responses to serious crime. From 1988 to 1994, juvenile arrests for violent crimes increased 62%. In response to this escalation, legislatures significantly modified juvenile justice court processes in four areas. These areas included: 1) transferring youth to criminal court, 2) relaxing confidentiality protections, 3) the emergence of an increased role for the prosecutor in juvenile justice court, and 4) “toughening” juvenile justice court sanctions.

The first significant change in juvenile justice court practice addressed youth who had committed serious crimes and changed state statutes regarding who should be handled in juvenile justice court and who should be transferred (or waived) to the criminal court. Between 1992 and 1995, 40 states and the District of Columbia changed their laws to restrict juvenile justice court jurisdiction in the most serious cases in three ways.

• Passing laws requiring automatic waivers to criminal court for specified offenses – Prior to this time, laws specified that only certain offenses were eligible for transfer to criminal court. Laws were changed to specify that certain offenses must be transferred to criminal court.
• Lowering the age of transfer to criminal court – Prior to this time, laws generally did not permit the transfer of youth to criminal court if they were under the age of 14 to 16. By 1995, 11 states had lowered the age of transfer.
• Removing or reducing discretion from juvenile justice court judges over whether to keep youth under the jurisdiction of the juvenile justice court or to waive youth to the criminal court – Not only were judges required to waive specified offenses, but also laws in some states gave prosecutors the discretion of whether to file an offense in juvenile justice court or criminal court. There was an increase in the number of states that required statutory exclusion or legislative transfer, which mandated certain offenses be filed directly in criminal court, removing specified youth from the original jurisdiction of the juvenile justice court. There was also an increase in the number of offenses included in this category.

The second significant change in juvenile justice court practice occurred in the area of confidentiality protections. Prior to the 1990s, juvenile justice court hearings and information were generally off-limits to the press and the public. Rarely was a juvenile offender’s name or picture printed in the newspaper. Non- parties could not generally attend juvenile justice court hearings unless it was demonstrated that the public’s right to know outweighed the youth’s right to confidentiality. This perspective changed as many legislatures removed the confidentiality restrictions and determined that the community’s right to know superceded the protection of the youth from stigma. Unless it was shown that opening the proceeding would significantly harm the youth, the juvenile process was opened to the public in many jurisdictions.

The third significant change in juvenile justice court practice resulted in routine involvement of the prosecutor in the juvenile justice court. Prior to In re Gault, prosecutors seldom appeared on juvenile justice cases except, on occasion, to help the probation department address legal matters. Over the past 30 years, more prosecutors have participated in juvenile justice court according to their traditional role as the advocate for the community by reviewing and filing petitions, appearing at all hearings, and taking positions in each justice case at every stage of the proceedings. This development has led to the juvenile justice court resembling the adult criminal process in several respects, specifically the growth of the adversarial process in the juvenile justice court and the practice in many jurisdictions of extensive use of plea negotiating.

The fourth change in juvenile justice court practice toughened the sanctions available to juvenile justice courts. Examples of this change include lowering the age for youth to be held in secure detention, lowering the age for youth to be sent to secure correctional institutions, and the option of blended sentencing. In blended sentencing a judge may impose both a juvenile and criminal sentence. If the juvenile successfully completes the juvenile sentence, the criminal sentence may be set aside or the juvenile may be ordered to serve a sentence in a juvenile facility until reaching the age of majority and then be transferred to a criminal justice system facility to complete the sentence.

At the same time legislatures were toughening their response to juvenile crime, justice systems also began exploring the model of Balanced and Restorative Justice (BARJ). The model gives equal consideration to 1) protecting the community, 2) holding offenders accountable for their acts, and 3) helping offenders to develop the skills and attitudes they need to succeed in becoming law-abiding and productive members of society.

Ten years after this decade of toughening responses to juvenile crime, the U.S. Supreme Court moved in the opposite direction when it overturned the previous decision of Stanford v. Kentucky (1989) that execution of a person who was 16 or 17 years of age at the time of his or her offense did not offend the Eighth Amendment’s prohibition against “cruel and unusual punishment.” In Roper v. Simmons (2005) the U.S. Supreme Court determined that the national consensus had changed, that the death penalty was a disproportionate punishment for juveniles, and that youth under the age of 18 are categorically excluded from capital punishment. Continuing this trend Graham v. Florida, U.S. Supreme Court, 560 U.S. (2010) and Miller v. Alabama, U.S. Supreme Court, 567 U.S. (2012) held that youth could not be sentenced to life without parole, regardless of the crime.