Board Advisor Jay D. Blitzman weighs in

We now know, as the founders of the juvenile court system intuited at the dawn of the twentieth century, that children are not little adults. Youth are accountable, but in a constitutional sense they are different than adults. Practitioners across the country are considering the implications of the message of proportional sanctioning and sentencing in a variety of contexts, including zero tolerance in schools, capacity to form mens rea, mandatory transfer, and collateral consequences. However, this landscape has been complicated by a disturbing and counterintuitive narrative: the recriminalization of status offense conduct (e.g., not attending school, running away from home, violating curfew) that was decriminalized in the aftermath of In re Gault, 387 U.S. 1 (1967), and the enactment of the Juvenile Justice and Delinquency Prevention Act (JJDPA) in 1974.

Prior to Gault, juvenile justice operated on a nonadversarial medical model, with a nonrebuttable presumption that a child needed treatment or “fixing.” A youth’s noncompliance with home or school rules was treated as a criminal matter, often leading to lengthy periods of incarceration.

On June 8, 1964, Gerald Gault and a friend, Ronald Lewis, were arrested. Gault was 15 years old and had been on probation for having been in the company of another boy who had stolen a wallet from a lady’s purse. A neighbor had made a verbal complaint about a telephone call in which the caller or callers had made remarks “of the irritatingly offensive, adolescent, sex variety.” As there was no evidentiary hearing, it was never conclusively established which statements, if any, could be attributed to Gault or to Lewis. After a session in the judge’s chambers, without the right to counsel or confrontation of witnesses, Gault was committed to the State Industrial School for the period of his minority (a six-year sentence). An adult in similar circumstances would have faced a maximum term of not more than two months or a fine of $5 to $50. Of course, an adult in the criminal system would have also been entitled to the benefit of due process. This disparity of treatment was the hallmark of the pre-Gault era and is being resurrected today.

Gault introduces due process. Gault introduced the concept of due process into juvenile adjudicatory proceedings by providing counsel for indigent youth, notice of the charges, the right of confrontation, and the right to remain silent. Gault also exposed the false dichotomy between due process and rehabilitation. Permitting state intervention and often subjective best-interest determinations without honoring the presumption of innocence and conducting rigorous fact finding unnecessarily entangled youth in the juvenile justice system.

In 1974 Congress passed the JJDPA, which provided federal juvenile justice dollars to the states in return for compliance with sweeping reforms. The JJDPA reflected the national consensus that status offenses should be decriminalized. Accordingly, the JJDPA’s initial core requirements were the deinstitutionalization of status offenders and sight and sound separation from adults. Removing juvenile offenders from adult prisons and reducing disproportionate minority contact with the juvenile justice system later became the other core principles of the legislation. Deinstitutionalization was designed to keep youth accused of status offenses from being housed with juveniles accused of criminal acts. Many states responded by enacting comprehensive statutory schemes to address offenses that only apply to minors, such as truancy or running away.

However, the so-called due process revolution was short-lived. Only four years after Gault, a reconstituted Supreme Court, viewing the history of juvenile justice through a different lens, held that jury trials in juvenile proceedings were not constitutionally mandated. Gault had only addressed the basics of fundamental fairness during the adjudicatory stage. Issues such as bail, transfer, and sentencing were not reached. Accordingly, each state was left to design the contours of its juvenile system, and the full realization of Gault’s promise of due process remains aspirational. The valid court order (VCO) enabled states that adopted the provision to treat children accused of violating conditions of treatment as the functional equivalent of delinquent probation violators and subject them to secure detention. The rehabilitative impulses of Gault were quickly countered by social and cultural concerns about rising arrest rates, the pernicious mythology of juvenile predators, and demographic projections forecasting a tsunami of juvenile crime. The “tough on crime” rhetoric had great resonance, and most jurisdictions raced to amend legislation by targeting violent offenders for adult prosecution.

State offense redux. Researchers have started to focus on what has been described as the “school-” or “cradle-to-prison pipeline.” The factors contributing to the pipeline implicate questions of race, class, geographic segregation, and access to public education. The dramatic increase in school exclusions and court referrals has compounded issues of racial and educational equity. The process has been accelerated by zero-tolerance policies and the deployment of police in schools.

Understanding the problem, changing the solutions. In 2012 a national summit, “Keeping Kids in School and Out of Court,” was held to address school-to-prison pipeline issues. The Office for Civil Rights and the U.S. Department of Education statistics, documenting the racial disparities and rates of school suspension and court referral, were focal points of discussion. Strength-based alternatives to zero tolerance, including positive behavioral support, emotional supported learning, restorative justice, and positive youth development were presented. Collaborative systemic partnerships between schools, police, advocates, and juvenile courts designed to divert cases and provide alternatives to legal processing were also featured.

States are also rethinking school suspension and expulsion policies. Many jurisdictions have realized that community-based treatment alternatives are more affordable than costly incarceration that has not reduced recidivism. The adult sanctioning model in schools and juvenile justice is inconsistent with what we know about adolescent development. Zero tolerance becomes intolerance when educators and jurists sanction in a way that is not proportionate.

The recriminalization process has also affected adolescents in the child welfare system. A significant percentage of youth who are status offenders in our child welfare system are also involved in the juvenile justice system. These “crossover” youth who have both civil and criminal contact with the court are more likely to be female, children of color, truant, and/or lower performing in school than the general population.

VCOs have also had a disparate impact on marginalized youth. While females constitute only 28 percent of petitioned delinquency cases, adolescent girls comprise a significantly higher percentage of all classes of status offenders. The numbers are particularly troubling given the context of the often-violent and dangerous households from which many runaway girls flee. The VCO has also had an adverse racial impact, with youth of color being detained at higher rates than their white peers.

Action can be taken to address these disconcerting trends, including not imposing pretrial conditions of release that are unrelated to court appearance and that criminalize adolescence. The JJDPA was last reauthorized in 2002 and has been due for reauthorization since 2007. There is a consensus among major juvenile justice organizations and prominent jurists in favor of the reauthorization of the JJDPA and the repeal of the VCO.

ABA Criminal Justice Section

This article is an abridged and edited version of one that originally appeared on page 18 of Criminal Justice, Spring 2015 (30:1).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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