Robert E. Shepherd, Jr., is Professor of Law at the T.C. Williams School of Law, University of Richmond. He is a member of the Board of Fellows, National Center for Juvenile Justice; chair of the Virginia Bar Association Commission on the Needs of Children; and former chair of the Juvenile Justice Committee, American Bar Association.
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One hundred years ago, the Illinois legislature enacted the Illinois Juvenile Court Act (1899 Ill. Laws 132 et seq.), creating the first separate juvenile court. The policy debates raging around the country in this centennial year, however, make it uncertain whether the traditional juvenile court will prevail. To put these debates in a proper historical perspective, it may be useful to review the evolution of the court.
Early in the 19th century, juveniles were tried along with adults in criminal courts. In common law, children under age 7 were conclusively presumed immune from prosecution because they lacked moral responsibility (the infancy defense). Children between ages 7 and 14 were presumed not to be criminally responsible, and prosecutors had to prove that an individual juvenile was culpable. Youth age 14 and older were deemed as responsible for their criminal acts as adults.
Despite the law's effort to temper the severity of trying and punishing children as adults, young children were sometimes sentenced to prison and occasionally to death. James "Little Jim" Guild, a black servant, was 12 years old when he was convicted of murder after a 2-day trial and less than 3 hours of jury deliberations. A sentence of death was automatic at the time. While awaiting execution, Guild conducted a mock trial with mice he had captured in his cell. Newspapers reported that Guild's attitude toward this mock trial seemed the same as it had been all during his imprisonment, that of not really comprehending the situation.
On execution day several thousand persons came to . . . witness Guild's hanging. To accommodate the crowds, the gallows was erected in a large field just outside town. The procedure followed its solemn course, complete with black hood and noose around the neck. But Guild shook off the hood as the trapdoor was sprung, and . . . balanced precariously on his toes at the edge of the drop. The sheriff rushed back up the steps and pushed Little Jim's toes off the edge and into thin air. Guild was thirteen years seven and one-half months old (Streib, 1987).
Prior to 1900, at least 10 children were executed in the United States for crimes committed before their 14th birthdays (Streib, 1987). Other children died in adult prisons. Virginia penitentiary records from 1876 reflect that a 10-year-old prisoner died from being scalded accidentally in a tub of boiling coffee. These deaths shocked the public conscience. Accordingly, Americans in the 19th century sought more pervasive reform than the infancy defense to address the distinctive nature of children and youth.
Jury nullification began to play a significant role in the acquittal of children charged with crime.
Early Responses
Houses of Refuge
In the early part of the 19th century, to the chagrin of prosecutors, jury nullification—the process by which jurors acquit an apparently guilty criminal defendant rather than impose a disproportionately severe sanction—began to play a significant role in the acquittal of children charged with crime. By creating the Society for the Prevention of Pauperism, Quakers in New York City sought to establish a balance between those concerned about jury nullification and those repelled by imprisoning juvenile defendants in adult institutions or exposing them to the possibility of capital punishment. The society, which later evolved into the Society for the Reformation of Juvenile Delinquents, founded the first House of Refuge in New York in 1825 to "receive and take . . . all such children as shall be taken up or committed as vagrants, or convicted of criminal offenses" (Pickett, 1969). The children worked an 8-hour day at trades such as tailoring, brass-nail manufacturing, and silver plating in addition to attending school for another 4 hours. Many of them had not committed any criminal act, and a number were probably status offenders.
In an early legal assault on the involuntary incarceration of children in such institutions, a father sought a writ of habeas corpus from the Pennsylvania Supreme Court declaring the commitment illegal. The court denied the writ and concluded that "it would be an act of extreme cruelty to release" the girl from the facility and refused to inquire into the procedures for commitment, the duration of her incarceration, or the conditions within the school.1 This decision is often credited with originating the use of the doctrine of parens patriae to justify informality and paternalism in dealing with children in the courts. The term, meaning literally the "father of the country," was a doctrine used by English equity courts to provide judicial protection for orphans, widows, and others.
Reformatories
The House of Refuge movement evolved into the slightly more punitive reform school, or reformatory, approach. The reformatory was created in the middle of the century to do the following (Platt, 1977):
 Segregate young offenders from adult criminals.
Imprison the young "for their own good" by removing them from adverse home environments.
Minimize court proceedings.
Provide indeterminate sentences to last until the youth was reformed.
Be used as punishment if other alternatives proved futile.
Help youth avoid idleness through military drills, physical exercise, and supervision.
Be used as a cottage approach within larger institutions in rural areas.
Reform youth by focusing on education—preferably vocational and religious.
Teach sobriety, thrift, industry, and prudence.
Later in the 19th century, an occasional legal attack on the incarceration of children in such youth prisons was successful. In an 1870 case, the Illinois Supreme Court held it unconstitutional to confine in a Chicago reform school a youth who had not been convicted of criminal conduct or afforded legal due process.2 Two years later, the school closed, and juveniles convicted of crimes were sent to adult prisons or to a reformatory after criminal conviction. It was against this backdrop in the last quarter of the 19th century that the juvenile court movement began.
The Illinois Juvenile Court Act
The 1899 Illinois Juvenile Court Act was, in part, yet another response to the growing incidence of jury nullification, concerns about the dominance of sectarian industrial schools in a Chicago filling with immigrants, and reform-based opposition to confining youth with adults. While the Act did not fundamentally change procedures in the existing courts that now were sitting as juvenile courts to adjudicate cases involving children, it did reintroduce the parens patriae philosophy to govern such cases. In addition to giving the courts jurisdiction over children charged with crimes, the Act gave them jurisdiction over a variety of behaviors and conditions, including:
[A]ny child who for any reason is destitute or homeless or abandoned; or dependent on the public for support; or has not proper parental care or guardianship; or who habitually begs or receives alms; or who is living in any house of ill fame or with any vicious or disreputable person; or whose home, by reason of neglect, cruelty or depravity on the part of its parents, guardian or other person in whose care it may be, is an unfit place for such a child; and any child under the age of 8 who is found peddling or selling any article or singing or playing a musical instrument upon the street or giving any public entertainment.3
The Act defined a rehabilitative rather than punishment purpose for the court.
The Act was unique in that it created a special court, or jurisdiction for an existing court, for neglected, dependent, or delinquent children under age 16; defined a rehabilitative rather than punishment purpose for that court; established the confidentiality of juveniles' court records to minimize stigma; required that juveniles be separated from adults when placed in the same institution in addition to barring altogether the detention of children under age 12 in jails; and provided for the informality of procedures within the court.
The juvenile court idea spread rapidly across the country.
The court's procedures in Illinois were, indeed, quite brief and simple, often consisting of the judge gaining the trust of the youth through informal conversation and then asking about the offenses charged. In its initial year, the Chicago judge presiding over the first juvenile court, the Honorable Richard S. Tuthill, sent 37 boys to the grand jury for adult handling, deeming them unsuitable for the juvenile court's treatment orientation. His successor, the Honorable Julian Mack, described the court's goals as follows:
The child who must be brought into court should, of course, be made to know that he is face to face with the power of the state, but he should at the same time, and more emphatically, be made to feel that he is the object of its care and solicitude. The ordinary trappings of the courtroom are out of place in such hearings. The judge on a bench, looking down upon the boy standing at the bar, can never evoke a proper sympathetic spirit. Seated at a desk, with the child at his side, where he can on occasion put his arm around his shoulder and draw the lad to him, the judge, while losing none of his judicial dignity, will gain immensely in the effectiveness of his work (Mack, 1909).
The Juvenile Court's Evolution
The juvenile court idea spread rapidly across the country, having been adopted by 46 States, 3 territories, and the District of Columbia by 1925. In Colorado, a parallel movement occurred under the leadership of the Honorable Benjamin B. Lindsey, who sat on the county court bench in Denver from 1901 until 1927 (Larsen, 1972). He exercised a type of juvenile jurisdiction under the authority of an obscure part of Colorado's compulsory school attendance law. He used the jurisdiction of the court not only to reform youth who appeared before the court, but to reform the city of Denver. His reforms ranged from addressing police corruption to ordering the creation of more playgrounds.
An incident that took place after Judge Lindsey left the juvenile court bench after his electoral defeat illustrates his zeal. He removed the court records, stored them in his home to keep them from his more punitive successors, and finally—accompanied by his wife, friends, and reporters—went to a vacant lot and burned them.
The Professionalization of Court Staff
In the early days of the juvenile court, volunteers on the court's own probation staff, who were largely untrained, performed many of the service functions in support of the judge. It soon became clear that professional staff were needed to serve the court and its clientele (Fox, 1970). As these professional services became more common, the role of volunteers diminished.
The Challenge of the Juvenile Court1
by Dean Roscoe Pound
Roscoe Pound, Dean of Harvard Law School from 1916 to 1936, was known as the dean of American jurisprudence. The following excerpt, taken from The Juvenile Court Judges Journal, reveals his belief nearly five decades ago that although the juvenile court had done much to further justice and prevent delinquency, much more work lay ahead.
Since the first setting up of the juvenile court great progress has been made in building upon it toward integration of the activities of law enforcement, of extralegal social control, of government and church and school and civic societies, of social workers, and of philanthropic individuals in anticipating delinquency, in reaching for its causes, and in rational treatment of its beginnings.
In particular, out of the juvenile court and experience of its possibilities there has grown awareness of the futility of dealing with the troubles of a household in detached fragments after damage has been done. We have been learning better methods than to have four separate courts in eight separate and unrelated proceedings trying unsystematically and not infrequently at cross purposes to adjust the relations and order the conduct of a family which has ceased to function as such and is bringing or threatening to bring up delinquent instead of upright citizens contributing to the productive work of the people.
It is not the least of the fruits of the juvenile court that we are ceasing and shall more and more cease to see a court of equity with a suit for divorce and alimony before it, courts of law with actions by tradesmen for necessaries furnished deserted wives and children, actions for alienation of affections of a spouse, actions over a child's wages, and habeas corpus proceedings to obtain the custody of children before them, criminal courts with prosecutions for abandoning wife or child or both before them, juvenile courts entertaining proceedings for contributing to the delinquency of a child, special courts under one name or another, entertaining guardianship proceedings, and very likely also juvenile courts determining what to do about specific delinquencies of a child—as like as not all arising out of a single household.
Already there is a movement to substitute healing procedures, devised to save households, for the combative proceedings operating to make disruption permanent; and this movement is the result of experience gained in the juvenile courts and wisely directed activities of judges of juvenile courts. Not only in what it has done in its own sphere but in indicating to us a larger sphere in which there is much to be done and in showing us something of the way to do it, the juvenile court has made lasting contributions to the administration of justice.
But while we may well be proud of what that court has been able to do in its relatively short history, we must realize that its usefulness has little more than begun and that difficult tasks still lie before it.
You who sit in American juvenile courts and their outgrowths are called to do a great work. You are called to carry on an outstanding forward step in the development of human powers to their highest unfolding—in the maintaining, furthering and transmitting of civilization.
R. Pound. 1950. Future challenges judges. The Juvenile Court Judges Journal 1(4):21-23, 28 (the journal of the National Council of Juvenile and Family Court Judges).
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Status Offenses
The juvenile court movement's expansion beyond urban areas was slower than the court's initial growth during the first two decades of the 20th century. The post-World War II period witnessed further development, however, as the "status offender," a concept derived from statutory definitions of delinquency, became a separate jurisdictional category. New York created a new jurisdictional category for Persons in Need of Supervision (PINS): runaways, truants, and other youth who committed acts that would not be criminal if committed by an adult. Other States followed New York's lead. With the enactment of the Juvenile Justice and Delinquency Prevention Act of 1974 (Pub. L. 93-415, 42 U.S.C. 5601 et seq.), the States' approach to these new categories of offenders changed dramatically, as young people subject to juvenile court jurisdiction for noncriminal misbehavior were removed from juvenile detention and correctional facilities.
Society began to question the validity and vitality of the juvenile court's informality.
Kent v. United States
In the 1960's, society began to question the validity and vitality of the juvenile court's informality and its focus on treatment without sufficient regard for due process. Critics from the right complained that the court was incapable of dealing with delinquent youth, while their counterparts from the left urged that the court was ignoring the rights of those young people who were coming before it. Finally, in 1966, the U.S. Supreme Court addressed the fundamental fairness of the juvenile court process in Kent v. United States, a case from Washington, DC.4 Because the trial judge (1) failed to hold a hearing prior to transferring Morris Kent, a 16-year-old, to criminal court for trial and (2) did not give Kent's lawyer access to the social information relied on by the trial court, the Court concluded that Kent had been denied due process. The Court also concluded that there must be a meaningful right to representation by counsel and a hearing on the issue of transfers to criminal court. Counsel also must have access to the social records considered by the juvenile court in making its decision, and the court must accompany its waiver order with a statement of the reasons for transfer. The Court's reliance on the District of Columbia Code for its decision in Kent, however, left doubt about the significance of the holding for other jurisdictions. Justice Abe Fortas sounded the following warning:
While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. There is much evidence that some juvenile courts, including that of the District of Columbia, lack the personnel, facilities and 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 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.5
In re Gault
In 1967, the President's Commission on Law Enforcement and Administration of Justice, appointed by President Lyndon Johnson, issued its Task Force Report: Juvenile Delinquency and Youth Crime, which expressed serious reservations about many of the fundamental premises of the juvenile justice system, its effectiveness, and its lack of procedural safeguards (President's Commission on Law Enforcement and Administration of Justice, 1967). That same year, many of the questions raised by Kent and the President's Commission were addressed by the U.S. Supreme Court in the historic decision of In re Gault.6
Gerald Gault was a 15-year-old charged with making an obscene telephone call to a female neighbor. He was convicted by a juvenile court in Arizona and committed to a juvenile correctional facility for an indeterminate period not to extend beyond his 21st birthday. Justice Fortas again wrote the opinion for the Court and ruled that youth are also protected under the 14th amendment. He also stated that Gault's constitutional rights had been violated and that Gault was entitled to:
Adequate notice of the precise nature of the charges brought against him.
Notice of the right to counsel and, if indigent, the right to have counsel appointed.
The right to confront witnesses and have them cross-examined.
The privilege against self-incrimination, which applies to juvenile and adult proceedings.
The Court also concluded that, because the noncriminal label attached to juvenile proceedings did not dictate the scope of the juvenile's rights, calling such matters "civil" would not dictate the parameter of the rights prescribed. Justice Fortas said that "it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase 'due process.' Under our Constitution, the condition of being a boy does not justify a kangaroo court."7 Gault marked the constitutional domestication of the parens patriae juvenile court, and a new era dawned based on a more criminal due process model contrasted with the historic informality of juvenile court proceedings. Gerald Gault later spoke at an American Bar Association ceremony honoring Amelia Lewis, the lawyer who initiated his suit. He observed that, without a lawyer, he had no idea what was happening to him in court until the judge said he was committed until he was 21.
Later Cases
In subsequent cases, the U.S. Supreme Court concluded that juveniles must be proved guilty beyond a reasonable doubt during the adjudicatory stage of delinquency cases;8 the right to a jury trial is not required by the Constitution in delinquency cases, although a State could provide a jury if it wished;9 and the Constitution's Double Jeopardy Clause prevents a juvenile court from transferring a youth to criminal court after previously finding him or her delinquent.10 The Court also decided that a youth's Miranda rights regarding self-incrimination are not invoked by his or her request to see a probation officer during custodial interrogation by the police11 and that a youth can be subjected to "preventive detention" awaiting trial.12 Thus, there is a somewhat schizophrenic quality to the juvenile court's direction after almost two decades of seemingly conflicting U.S. Supreme Court decisions about due process. Dean Roscoe Pound of the Harvard Law School stated that the juvenile court has become like "the illegitimate issue of an illicit relationship between the legal profession and the social work profession, and now no one wants to claim the little bastard" (Reader, 1996).
The Act introduced a strong Federal presence to the juvenile justice arena.
Juvenile Justice and Delinquency Prevention Act of 1974
In addition to committing the Federal Government to removing status offenders and nonoffenders from secure facilities and separating juvenile offenders from adults in institutional settings (as described on page 18), the Juvenile Justice and Delinquency Prevention Act had other important features:
It introduced a strong Federal presence to the juvenile justice arena by committing resources and establishing a legislative commitment to certain goals and policies.
It recognized the immense value in placing the primary responsibility for implementing those goals and policies at the State and local community level through a Formula Grants program conducted under the policy guidance of State Advisory Groups, a majority of whose members are not government employees.
It created OJJDP to institutionalize the Federal presence in juvenile justice.
It established a discretionary grant process through the Special Emphasis Prevention and Treatment Program to make awards directly to public and private nonprofit agencies to help develop and replicate creative techniques and strategies for realizing the Act's purposes.
It established a National Institute for Juvenile Justice and Delinquency Prevention to conduct research, evaluation, and statistics activities; gather and disseminate information to the field; and provide training and technical assistance.
It encouraged the development of national standards to assist in reforming the juvenile justice system.
It embodied the goal of coordinating Federal programs in the areas of delinquency prevention and juvenile justice.
Obviously, the Act constituted a great deal more than the characteristics highlighted above, but it was built largely upon these pillars, with the most important ones being the identification of national goals for the rehabilitation and reform of juvenile justice and the designation of a Federal-State partnership for the implementation of those goals. The Formula Grants program placed the implementation emphasis on the States and, through the State Advisory Groups, on local communities.
Conclusion
Today, the future of the juvenile court is in question. This uniquely American institution has been duplicated throughout the world as the best model for the humane and innovative handling of juveniles who commit crimes. Many countries with new democracies have recruited American juvenile justice experts to replicate the juvenile court born on U.S. shores a century ago. The juvenile court system's contributions to the just handling of children and families in the legal system should be celebrated, and the court should be provided with the support and resources that it needs to meet the challenges of the 21st century.
Notes
Ex parte Crouse, 4 Wharton 9, 11 (Pa. 1838).
People ex rel O'Connell v. Turner, 55 Ill. 280, 283-84, 287 (1870).
Illinois Juvenile Court Act, 1899 Ill. Laws 132 et seq.
Kent v. United States, 383 U.S. 541 (1966).
Id. at 555-556.
In re Gault, 387 U.S. 1 (1967).
Id. at 27-28.
In re Winship, 397 U.S. 385 (1970).
McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
Breed v. Jones, 421 U.S. 519 (1975); Swisher v. Brady, 438 U.S. 204 (1978).
Fare v. Michael C., 442 U.S. 707 (1979).
Schall v. Martin, 467 U.S. 253 (1984).
Supplemental Reading
Coalition for Juvenile Justice. 1998. A Celebration or a Wake: The Juvenile Court After 100 Years. Washington, DC: Coalition for Juvenile Justice.
Fitzpatrick, J.L., and Keenan, B.M. 1999. The juvenile justice system—a circle closed. Virginia Lawyer 47(1):24-30.
References
Fox, S. 1970. Juvenile justice reform: An historical perspective. Stanford Law Review 22:1187-1239.
Larsen, C. 1972. The Good Fight: The Life and Times of Ben B. Lindsey. Chicago, IL: Quadrangle.
Mack, J.W. 1909. The juvenile court. Harvard Law Review 23:104-122.
Pickett, R. 1969. House of Refuge: Origins of Juvenile Reform in New York State 1815-1857. Syracuse, NY: Syracuse University Press.
Platt, A.M. 1977 (Revised from 1969). The Child Savers: The Invention of Delinquency, 2d ed. Chicago, IL: University of Chicago Press.
President's Commission on Law Enforcement and Administration of Justice. 1967. Task Force Report: Juvenile Delinquency and Youth Crime. Washington, DC: U.S. Government Printing Office, Superintendent of Documents.
Reader, W.D. 1996. The laws of unintended results. Akron Law Review 29:477-489.
Simonsen, C.E. 1991. Juvenile Justice in America, 3d ed. New York City, NY: MacMillan.
Streib, V. 1987. Death Penalty for Juveniles. Bloomington, IN: Indiana University Press.
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