Doing Justice to Juvenile Justice

Author: Professor Robert E. Shepherd Jr.,  American Bar Association, Juvenile Justice Center
Reprinted From: Handsnet 5/97

The juvenile justice system in America was founded almost 100 years ago, just before the dawn of the Twentieth Century, largely on the idealistic premises that juvenile offenders should be kept separate from adults in institutional settings, that children are different from adults and thus are more amenable to treatment and rehabilitation than their older counterparts, and that youths should be dealt with through individualized justice targeted at their particularized needs rather than by a sanction system driven solely by the offenses that brought them into the system. Despite the fact that scholars in recent years have argued that the motives behind the formation of the juvenile court were mixed, the spread of the movement across the country was impelled largely by the highest motives and idealistic purposes of reformers. In addition, the juvenile or family court model, one of the few uniquely American contributions to court structure, has spread across much of the world. Indeed, Roscoe Pound, one of the most important teachers and writers about jurisprudence in our history, opined that the juvenile court was one of the great social inventions of the Twentieth Century.

As we approach the centennial of juvenile court, we should be preparing a celebration of this remarkable reform. Instead, the core premises behind the juvenile court are under assault from all directions. The juvenile justice system has united diverse politicians and advocates into a cacophony of criticism like almost no other institution. Why is this true, and why are some calling for a funeral pyre rather than a birthday cake? What has the court done to deserve such attacks? Why are those who still believe in the essential validity of the basic premises behind the court occupied defending the barricades rather than out front like drum majors leading a celebratory parade?

There are many answers to those questions. First, we have been guilty of some undue self-congratulation and self-satisfaction. Like all human institutions, the court as it developed became careless and complacent in its processes. We thought we always knew what was best because our hearts were pure. We fell under the spell of our own rhetoric and ignored the risk in focusing solely on ends rather than reconsidering the means. It is said that the three most cynical statements in the world are: 1) my check is in the mail; 2) of course I will respect you in the morning; and 3) I'm from the government and I'm here to help you. Or, as Justice Louis Brandeis put it more elegantly "experience should teach us to be most on guard to protect liberty when the government's purposes are beneficent." In our desire to help children become more human we sometimes were not humane. In re Gault (387 U.S. 1 (1967), decided thirty years ago this year, was a necessary corrective in forcing us to accord du e process in the juvenile court. But changes in court procedures do not necessarily mean changes in substance, as even the critics have ignored in their recent changes.

Second, we assumed that confidentiality was synonymous with secrecy. We, in the beautiful language of the New Testament, covered our light with a bushel and did not let the public know about our triumphs and our deficiencies. Third, we allowed society to expect much of us without providing us with the necessary resources to permit us to measure up to those demands. Juvenile courts, like most institutions in our culture dedicated to children and youth, have been left to function largely with baling wire and chewing gum. Edward Humes, who is on the program of this Conference, has observed in his eloquent book No Matter How Loud I Shout that the juvenile court in Los Angeles has been denied many of the basic necessities that any court, any temple of justice, should have to function efficiently and effectively.

It is remarkable that juvenile courts day in and day out accomplish what they do while being kept below the poverty level. G.K. Chesterton's observation, when confronted with an accusation about the ineffectiveness of Christianity, is particularly pertinent here. "The Christian ideal has not been tried and found wanting. It has been found difficult; and left untried." Our society wants easy answers, quick solutions, cheap strategies, and yet we accuse our youth of wanting instant gratification. We are unwilling to pay the price for what works, even though the price will be far less than what we will have to pay later if we don't pay sooner. We also have been unsure of our own successes and uncertain of our premises. We viewed the post-Gault court as some unworthy biological mutant. In the insightful words of Judge Lindsay Arthur, "The juvenile court is the illegitimate offspring of a meretricious relationship between a police officer and a social worker, neither of whom is willing to acknowledge their parentage of the little bastard." We are like the adolescents we work with, concerned about our body image, insecure in how our peers view us, and uncertain about our future.

We who believe in the vitality of the juvenile court and in the validity of its core principles must be more forthright in singing its praises. We need to take the initiative away from the critics. We must insist on their evidence for the greater effectiveness of the criminal justice system in protecting the safety of our communities and holding our youthful charges accountable. When we are confronted with claims that young people today are more violent and more dangerous than any preceding generations, we need to answer with the examples of history. In the 5th century B.C. Socrates observed that "our youth now love luxury - they have bad manners and contempt for authority... Children are now tyrants-not the servants of their households.... They contradict their parents, chatter before company, gobble up their food, and tyrannize their teachers." Almost four hundred years ago Shakespeare had a character in The Winter's Tale observe that "I would there were no age between ten and three-and twenty, or that youth would sleep out the rest; for there is nothing in the between but getting wenches with child, wronging the ancientry, stealing, fighting." (Act 111, Scene Three.) The New York Times 140 years ago bemoaned the fact
that "the number of boy burglars, boy robbers and boy murderers is so astoundingly large as to alarm all good men." Sounds familiar, doesn't it? And yet our juvenile crime rate is supposedly unprecedented. The political proposals of today, and the rhetoric to support them, don't even take note that juvenile delinquency and violent juvenile crime have dropped in the past several years, with an even more significant dip in violence by the youngest youth.

The excellent data compiled by the National Center in Pittsburgh and the insightful observations of the able staff there give us an accurate picture of the incidence of juvenile crime, the trends that are occurring, and some of the directions we should go. The National Council issued a report thirteen years ago, entitled "The Juvenile Court and Serious Offenders: 38 Recommendations," which is just as timely today as it was in 1984. We need to take it off the shelf and vigorously urge that Congress, state legislators, Governors, and the White House pay attention to the recommendations of those who deal with troubled and troubling youth and their often dysfunctional families every day. The core premises behind those 38 recommendations are the same that impelled the creation of the juvenile court almost one hundred years ago. If we are going to do justice to America's youth, we must do justice to the juvenile and family courts that deal with them.

Elie Wiesel tells the story of a famous Hasidic rabbi who had a close and devoted group of students. One day, one of the students was delegated to convey to the rabbi the respect and love of the students. The rabbi, however, refused to accept the message, saying that the students could not possibly love him. The student protested, asserting again the love of the pupils. A second time the rabbi dissented. The youth persisted. Finally, the rabbi said, "If you love me, then tell me where I hurt." The student, taken aback, said, "Rabbi, we didn't know that you hurt." The rabbi responded, "How can you love me if you don't know where I hurt'?" Those who work every day in living out the fundamental premises of the juvenile justice system are the ones who know where the children hurt. They are the ones who must be listened to.

Professor Robert E. Shepherd Jr., a member of the National Center for Juvenile Justice Board of Fellows, is the keynote presenter for the 24th Annual National Juvenile Justice Conference to be held in Reno/Sparks in March. Dr.
Shepherd is a professor of law at the University of Richmond Law School. He is currently a member of the Virginia Advisory Committee on Juvenile Justice and Delinquency Prevention, the Virginia General Assembly Task Force on Serious and Violent Juvenile Crime and the Working Group on the U.N. Convention on the Rights of the Child. For more information about Juvenile and Family Justice Today, the National Council of Juvenile and Family Court Judges, or the report titled, The Juvenile Court and Serious Offenders: 38 Recommendations call 702/784-4858

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