Introduction

My professional career has spanned three of the four eras of juvenile justice in the United States: the Due Process Revolution of the 1960s and 1970s; the Get Tough Era of the 1980s and 1990s; and the more recent academic and judicial recognition that Kids Are Different. I focused on juvenile justice administration when few legal scholars or criminologists appreciated that the intersection of youth policy and crime policy raised many interesting and challenging questions. I have had opportunities to work with professional organizations and law reform groups to promote policy reforms and learned from those who labor in the trenches about the practical problems they confront. Those collaborations have informed my research agenda and I have learned from them how to use academic research to influence policy and practice. A young scholar does not know the course of his or her career, where their research will lead, what its impact will be, or what intellectual themes will emerge. From the vantage point of a career spanning more than four decades and in retrospect, I can identify three themes in my scholarship: culpability, competence, and equality. For the juvenile court, culpability and competence implicate issues of ends and means, or substance and procedure.

Substantive law defines rights and duties or legal goals. Procedural law defines the process through which to achieve those entitlements or objectives. In the context of juvenile courts, the ends and means—substance and procedure—represent the goals of judicial intervention and methods to achieve them. Culpability focuses on youths’ mental state at the time of the crime, criminal responsibility, and penal consequences. To what extent is a youth responsible for the consequences of his actions? To what degree is he or she at fault and their conduct blameworthy? Substantive goals raise issues of diversion, treatment, and punishment, reduced culpability or diminished responsibility, and appropriate interventions or deserved consequences. Substantive questions arise when juvenile courts detain and sentence delinquents, transfer them to criminal court, and sentence them as adults. Why and how do we respond to youths’ criminal misconduct as we do? Recent advances in developmental psychology and neuroscience inform policies about appropriate interventions, waiver to criminal court, and sentencing as adults.

Competence involves the ability to do something successfully or efficiently. In the context of juvenile courts, it focuses on youths’ capacity to employ rights, ability to understand and participate in the legal process, and decision-making capacities. Procedural issues involve youths’ competence to stand trial, ability to waive or invoke Miranda rights, capacity to exercise their right to counsel, and right to obtain a jury trial. Can delinquents measure up to adult legal performance standards or do they require additional procedural safeguards to offset their developmental limitations? In light of juvenile courts’ procedural deficiencies and youths’ developmental limitations, how reliable are delinquency convictions?

Questions of equality address issues of race and gender in juvenile justice administration. Black youths have always experienced a different justice system than white youths. During the second-half of the twentieth century the issue of race has had two distinct and contradictory influences on juvenile and criminal justice policy. During the 1950s and 1960s, the Supreme Court’s Due Process Revolution imposed national legal and equality norms on the recalcitrant Southern states, which still adhered to a segregated Jim Crow legal regime. Beginning in the 1970s, conservative Republican politicians pursued a Southern strategy to appeal to white voters’ racial animus: they used issues such as crime and welfare as code-words for race to gain electoral advantage, and advocated get tough policies, which ultimately affected juvenile and criminal justice policies throughout the nation. The racialization of juvenile justice policy has led to a disproportionate impact of punitive policies on minority youths, especially young black males.

Historically, juvenile courts’ responses to girls have differed from their responses to boys. Industrialization brought more young women to cities and exposed them to the hazards of prostitution and sexual exploitation. During the Progressive era, Victorian sensibilities and concerns about female sexuality encouraged regulation of girls for waywardness, incorrigibility, and sexual precocity. More recently, policy makers have recast girls’ acting-out behavior as violent conduct. Despite changes in practices over time—the different expectations and social construction of gender in different periods—the juvenile justice system’s responses to girls have differed from those to boys.

As an institution, the juvenile court is situated at the nexus of two domains: youth policy and crime policy. How should society respond when the kid is a criminal and the criminal is a kid? Over the past century, two contending visions of youth have influenced policies toward young offenders. On the one hand, policy makers may characterize youths as children—immature, innocent, vulnerable and dependent. On the other hand, they may characterize them as quasi-adults— mature and responsible. Despite the seeming contradiction between these polar characterizations, I argue that judges and legislators selectively choose between the two constructs—immature versus responsible—to maximize social control of young people. States treat juveniles like adults when formal equality results in practical inequality and use special juvenile court procedures when they provide an advantage to the state. These competing conceptions—immaturity and incompetence versus maturity and competence—affect legal responses to their misdeeds and strategies of social control.

Strategies of crime control mark the second idea shaping juvenile justice policy. When people violate the criminal law, legal scholars and criminologists typically differentiate between retributivist and utilitarian, or consequentialist, sanctions—deterrence, incapacitation, or rehabilitation. Theories of punishment reflect underlying assumptions about whether peoples’ behavior is deliberately chosen or the product of antecedent forces—free will versus determinism. Juvenile courts’ historic claims to rehabilitate young offenders elicit the traditional dichotomy between treatment and punishment. Treatment-oriented interventions focus on offenders—what antecedent forces caused them to act as they did and what interventions can ameliorate those conditions, reform them, and improve their life chances. Punishment-oriented strategies focus on the offense committed and impose sanctions to denounce the act, alter the offender’s calculus, or reduce its likelihood of reoccurrence. The juvenile court’s founders recognized that children were not autonomous beings—they were more dependent on their families and communities than adults, they were less able to escape the criminogenic environments in which they lived, their behavior was more determined than chosen, and they should be treated rather than punished.

Although Progressive reformers proffered rehabilitation as the primary justification for a separate juvenile court, diversion from the criminal process provided a second rationale at its inception and the court’s diversionary function still prevails. Regardless of juvenile courts’ ability to provide rehabilitative programs that improve children’s lives, simply deflecting youths from the criminal justice system avoids its more destructive consequences. Diversion constitutes a passive alternative to criminal courts that does less harm. Although juvenile courts then and now seldom achieve their rehabilitative goals, they still shield youths from life-altering criminal punishment and collateral consequences. The competing conceptions of childhood—immaturity and incompetence versus maturity and competence—and differing strategies of crime control—treatment or diversion versus punishment—affect the substantive goals and procedural means that juvenile courts use to regulate offending youths, and have varied throughout the history of the juvenile court, and among and within states.

This article describes the trajectory of my career over the three eras of juvenile justice—the Due Process era, the Get Tough Era, and the contemporary reaffirmation that Kids Are Different. Part I examines changes associated with the Supreme Court’s requirement that juvenile courts provide delinquents some procedural safeguards. Part II examines the Get Tough Era and states’ emphases on youths’ adult-like culpability and adoption of punitive policies. Part III reviews the Supreme Court’s recent jurisprudence of youth, reaffirmation that children are different, and limits on harsh punishment for youths. It concludes with a reflection on the limits of juvenile justice reform to improve the life chances of young people.

Read the full article, including all footnotes and references, in the Nevada Law Journal.

Barry C. Feld

University of Minnesota Law School

Barry C. Feld is one of the nation’s leading scholars of juvenile justice. Professor Feld was a visiting scholar at the National Center for Juvenile Justice sponsored by the United States Department of Justice Office of Juvenile Justice and Delinquency Prevention. He was a Reporter for the American Bar Association-Institute of Judicial Administration Juvenile Justice Standards Project. He has served as a member of the Minnesota Department of Corrections Special Committee on Serious Juvenile Offenders, on the Hennepin County Juvenile Justice Task Force, the Minnesota Supreme Court Advisory Committee on Legal Representation of Juveniles, the Minnesota Juvenile Justice Task Force, as Co-Reporter for the Minnesota Supreme Court’s Juvenile Court Rules Advisory Committee, and the American Bar Association’s Juvenile Justice Due Process Advisory Board. Professor Feld is a member of the American Law Institute and a Fellow of the American Society of Criminology.

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