In the second edition of the book titled The Cycle of Juvenile Justice, the late
Thomas J. Bernard and Megan Kurlychek assert that there is a cyclical pattern
in juvenile justice, where the same sequence of policies has
been repeated over three times in the last two hundred years.
In fact, the authors argue that future policy changes regarding juvenile justice
can actually be predicted by closely examining the cycle.
The authors also argue that the behaviors that we describe as juvenile
delinquency today first appeared in the United States in Western Europe
around 1800 and persist to this day. They attribute juvenile delinquency to
urbanization, industrialization, and the breakdown of traditional social controls.
The authors contend that since 1800 there are numerous aspects of juvenile
delinquency, which have stayed the same. For example, they assert that young
males have always committed more crime than members of other groups.
While the overall incidence and rate of crime may change, what remains
constant is that young people, especially young males, are disproportionally
involved in crime. In their book, Bernard and Kurlychek also point out that there
are special laws only juveniles are required to obey.
These laws are typically referred to as status offenses.
Status offenses have been around for over two hundred years.
Examples of status offenses, according to the authors include truancy,
running away from ones parents, underage drinking,
and refusing to obey ones parents. The authors contend that juveniles are
still required to obey special laws, even in those states which have
decriminalized status offenses. They assert that status offenders may be
redefined as criminal offenders so that they might be processed through
the juvenile courts. The authors argue that there have
been separate laws for juveniles for centuries in attempts to changes these
laws have only resulted in new laws or new approaches to control certain types
of behaviors in juveniles. Bernard and Kurlychek also maintained
that for the last two hundred years, juveniles for the most part, are often
punished less severely than adults. They trace this back to the code of
Hammurabi, which was written over four thousand years ago.
Here juveniles were treated more leniently than adults.
Also, they examined Roman law with the twelve tables, were there was absolute
immunity from punishment for children below a certain age.
Today according to the authors, in most states within the U.S,
young offenders below the age of eighteen are sent to the juvenile court.
Nevertheless, there are states which have lowered the maximum age for
juvenile court jurisdiction. For example, in New York and in
North Carolina, if a juvenile is over fifteen years old he or she will
be tried in an adult court. Also, it is important to point out that
even if a juvenile commits a crime, if the offense is serious enough or if
he or she has committed multiple offenses the juvenile could be waived
to an adult court. And, in some states certain offenses,
which are very serious, such as murder may automatically be waived
to an adult court. In these cases, the defense attorney will
then try to get the case transferred back to the juvenile court.
There are also other aspects of juvenile delinquency which have remained
unchanged for the last two hundred years. The authors assert that older people
tend to believe that the current group of young people commit more frequent
and more serious crimes than juveniles in the past.
They refer to this phenomenon as the myth of the good old days.
The authors assert that whether juvenile crime is high or low many people tend
to believe that it is worse than before. Therefore, people always tend to
believe that we are right in the middle of or on the verge of a juvenile crime
wave, regardless of what the actual reality might be.
Bernard and Kurlychek also argue that many people blame juvenile justice
policies for the supposed juvenile crime wave as either being too lenient
or too harsh. This explains both the creation of the
first juvenile institution as well as the development of the juvenile
justice system. For example, prior to 1825,
there was no juvenile institution. Instead, there were only adult facilities
to send juvenile offenders to. So naturally, judges, juries,
and prosecutors wanted to avoid sending juvenile offenders to adult institutions.
As a result, many juveniles got off scot free.
People were very critical of this which eventually led to the creation of the
first juvenile institution in New York City in 1825.
The first juvenile court, in Chicago, also emerged in a very similar manner.
It was established in 1899 because the adult courts were believed to be
too lenient with juveniles. As a result, of the creation of the
juvenile court system, more youths were subjected to the control and
supervision of the adult court system. It is worth mentioning again that the
author attribute juvenile delinquency to the transition from agricultural
societies to modern industrial societies. In the United States and in
Western Europe the transition occurred at about the same time in the early 1800s.
Interestingly, when other nations made a similar transition, juvenile delinquency
also occurred. For example, as countries in Africa,
Asia, and Latin America underwent modernization during the
latter part of the 20th century, they too, confronted the problem of
juvenile delinquency. Again, this is a phenomenon which no
country really experienced as a traditional agricultural society.
Population growth coupled with urbanization put juvenile offenders
into close contact with potential victims, and immigration created culture conflict
which also led to crimes, and industrialization increased the
number of movable goods which led to a significant spike in property crimes.
In the United States, the juvenile justice system was created to capture young
underprivileged people and shape and mold these individuals into productive people,
so that they would not steal the property from the wealthy members of society.
The authors argue that universities and colleges were used to mold young people
from the middle and upper class segments of society.
While the juvenile justice system, on the other hand,
was used to mold young people from the lower classes who were deemed
to be the most dangerous. The first juvenile institution was created
in 1825 in New York by powerful protestant middle age men who had grown
up in quiet and orderly small towns. As America made its transformation from
a rural to an urban society, these men believed that young immigrant youths were
creating havoc in the cities. When youths were caught committing crimes,
they also noticed that judges and juries often refused to convict them and it
would entail sending a young person to the penitentiary.
So as a result, youthful offenders often got off scot free.
These wealthy protestant men decided to build a juvenile institution which was
focused on reform rather that punishment. When this facility was built, it even
took in juveniles who had not yet committed any crime.
Most of these juveniles were committed to this house of refuge until they were
twenty one years of age. Again, virtually all of the juveniles who
were cited within this institution were immigrants.
The children of Irish Catholics soon came to dominate the population inside
the house of refuge. Eventually, there was no more room
inside this institution. So youths were sent to work on farms
in the newly settled states such as Ohio, Indiana, and Illinois.
These young immigrants were essentially indentured servants until they
turned twenty one. They were taken from their families
and either confined in a facility or placed in homes which were hundreds
of miles away and they were made to work for their keep.
The natural parents of these youths were not typically told of their
children’s whereabouts. In their book, Bernard and Kurlychek
point to an 1838 Pennsylvania Supreme Court case which they referred to
as the Case of Mary Ann Crouse. In this case, a girl was sent to a
Philadelphia house of refuge, even though she had not committed a crime.
Her father argued that the state had no right to confine his daughter;
however, the Pennsylvania Supreme Court rejected the father’s arguments and ruled
that it was legal to help Mary Ann because of the state’s role as parens patriae.
This is a Latin phrase which means parent of the country.
The court held that the state had an obligation to take over as this
child’s parent. And because she was not being punished,
this child was not entitled to any due process protections.
This case essentially affirmed that children could be held in houses of
refuge until their twenty first birthday, even if they had not committed
an actual crime. In 1868, thirty years later the Illinois
state Supreme Court ruled that a young juvenile who had committed no crime could
not be held in a reform school. The court concluded that the juvenile,
whose name was David O’Connell, was being punished rather than helped.
The court held that it was illegal to send poor children to reform schools
unless they had committed a felony offense.
It was not long after this decision that reformers went looking for a new basis
to control poor immigrant children. Reformers always sought to expand state
power rather than limit it. So after the O’Connell decisions declared
that it was illegal to confine juveniles who had not committed a crime in
houses of refuge, social reformers created the first juvenile court.
The juvenile court which had civil rather than criminal jurisdiction would be used
as a tool to control children who were deemed to be among the dangerous class
that threatened the status quo. Bernard and Kurlychek argue that while
the first juvenile institution had been founded by men, the first juvenile court
was largely the result of the work of women.
These women were the wives and daughters of prominent Chicago politicians
and businessmen. These women went to the city council
and state legislators and lobbied for major policy changes in the
handling of juveniles. After the O’Connell decision, these
reformers wanted to find a way to control poor immigrant juveniles,
even those who had not yet committed a crime.
And these reformers were able to accomplish their objective by removing
children from the jurisdiction of the adult criminal court and establishing
a juvenile court which was not criminal in nature.
Rather, the juvenile court was social welfare agency and children who had needs
of any kind could be brought into the juvenile court.
After the first juvenile court was established, the law provided court
workers with virtually unlimited power over poor children.
And because the juvenile court was a civil court rather than a criminal one,
young people brought within its jurisdiction did not enjoy
due process protections. The juvenile court returned to handling
juvenile offenders as it had handled them before the O’Connell decision.
It established a new basis for the old practice of sending poor children to rural
institutions for their own good, even if these children had not
committed an actual crime. As long as the case worker thought it was
in the best interest of the child it was, once again, no longer necessary for that
child to have committed an actual criminal offense.
The few due process safe guards that have been providing the juveniles under
the O’Connell decision were wiped out by the establishment of the new
juvenile court. This pattern would go uncontested
for the next seventy years. It was not until the mid-1960s that
the U.S Supreme Court would make key rulings which would provide juveniles
with important due process safeguards.