Diane E. Hill
Victor L. Streib
C. Antoinette Clarke
In the late nineteenth century, a movement began in Europe and the United States that acknowledged the role played by social and economic conditions in setting children in conflict with the law. This resulted in the establishment of separate judicial proceedings for juveniles in many parts of the world by the beginning of the twentieth century, with uneven success and public support. Although interwoven with other human rights issues, such as a child's right to education, and to structural injustices–particularly racism and poverty, with its criminal wake of drug-dealing, prostitution, and theft–juvenile justice administration as a topic of international human rights concern did not fully emerge until the last quarter of the twentieth century.
The League of Nations' 1924 Declaration of the Rights of Children, followed by the United Nations' declaration (1959), recognized the issue of CHILDREN'S RIGHTS as a topic of international concern. However, neither document addressed the rights of children in conflict with the law or whether the young should be differentiated from adults in justice administration. The UN's 1955 Standard Minimum Rules for the Treatment of Prisoners stipulated that young offenders should not be imprisoned and, if they were, that they be separated from incarcerated adults. It was not until 1980 that the UN's Congress on the Prevention of Crime and Treatment of Offenders resolved to comprehensively address the unique needs of juvenile offenders.
Following this initiative, in 1985 the UN adopted the Standard Minimum Rules for the Administration of Juvenile Justice, or Beijing Rules. Recognizing the juvenile's evolving social, physical, and psychological development, the Beijing Rules sought to couple rehabilitation with judicial correction proportionate to a juvenile's personal circumstance and offence. Subsequently, the nonbinding UN Rules for the Protection of Juveniles Deprived of Their Liberty and the UN Guidelines for the Prevention of Juvenile Delinquency, or Riyadh Guidelines, were adopted by the UN in 1990. Contributing to forming international norms that applied child-centered values to juvenile DELINQUENCY and criminality, these documents prescribed that society interact with its troubled youth as valuable members and not as objects to be socialized or controlled.
However, the most significant instrument establishing juvenile justice as a topic of international concern is the 1989 UN CONVENTION ON THE RIGHTS OF THE CHILD (CRC). Entering into force in 1990 as the most well-received human rights treaty in history, it obligates its 191 ratifying states– only Somalia and the United States have yet to ratify–to alter their domestic legislation to comply with its provisions and regularly report their compliance to the CRC's monitoring mechanism, the Committee on the Rights of the Child. Importantly, the CRC generalized seventeen as the maximum age for juvenile status, a dividing line between children and adults that has remained the international norm.
Although some of the CRC's general provisions are relevant to children in conflict with the law, Articles 37 and 40 specifically address juvenile justice issues. Article 37 upholds the dignity owed a young offender as a human being, prohibits torture and degrading treatment or punishment, and abolishes capital punishment and life imprisonment without possibility of release for people under eighteen. Imprisonment of a child is proclaimed a measure of last resort to be applied for as little time as possible. Reflecting the 1966 International Convention on Political and Civil Rights, the young offender must be separated from incarcerated adults if detained or imprisoned.
Article 40 advocates the reintegration of the child as a constructive member of society. It echoes the 1948 Universal Declaration of Human Rights in proclaiming a child's right to due process and presumption of innocence until proven guilty, to have access to legal assistance, and to obtain an expeditious trial. Besides requiring states to establish a minimum age below which children cannot be deemed criminally culpable, Article 40 calls for children to be handled without resort to judicial proceedings whenever possible and offered alternative correction programs which might involve counseling, probation, FOSTER CARE, education, and vocational training proportionate to their circumstances and offenses.
Regional treaties also significantly contribute to the shaping of international rights norms for juvenile justice administration. The 1969 American Convention on Human Rights prohibited the death penalty for those under the age of eighteen and prescribed the separation of young offenders from adults. It also specified the right to a speedy trial before "specialized tribunals" mindful of the offender's status as a minor. In 1999, the Organization of African Unity's African Charter on the Rights and Welfare of the Child (1990) went into force as the first regional charter subsequent to the CRC that specifically addresses the administration of juvenile justice (Article 17) from the CRC's child's rights perspective. The 1954 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) stipulated few children's rights relevant to youth in conflict with the law, prompting the Council of Europe to adopt the comprehensive European Convention on the Exercise of Children's Rights in 2000.
Although much has been done in the last few decades to strengthen the rights of children in justice systems around the world, urgent human rights issues remain. Many countries, especially those most impoverished, lack a specific juvenile justice system or insufficiently support the existing system's infrastructure, resulting in overcrowding, unsanitary conditions, and the detention of minors with adults. Countries are challenged to fund rehabilitation programs and training programs for juvenile system personnel (who are often of a different cultural and economic background from the offenders), and coordination of relevant services of child psychologists, social workers, and lawyers is lacking. A country's wealth is not necessarily an indicator of a thriving juvenile justice system or immunity from inefficient legal processes that lead to lengthy delays and confinement of a child pending indictment or trial. In 2002, Human Rights Watch reported the lack of legal representation and systemic guarantees to fair hearings for young offenders in the United States, along with Brazil, Bulgaria, Guatemala, India, Jamaica, Kenya, Pakistan, and Russia. In detention facilities, children can face prolonged separation from their families, denial of legal assistance, and sentences that are incommensurate with the offense.
Another profound problem is physical abuse, including corporal punishment, meted out by police or staff. The Committee on the Rights of the Child has noted incidences of torture, flogging, or whipping visited upon youth offenders in LATIN AMERICA, AFRICA, and other areas. Youth detention also occurs as a remedy for perceived social problems such as sodomy or for family problems such as unruliness. Moreover, increasing crime at the end of the twentieth century in such countries as the United States and AUSTRALIA led to the establishment of mandatory sentencing rather than allowing the judge discretion to consider a juvenile offender's individual situation.
Underscoring the pressing nature of these human rights needs is a lack of domestic legislation that integrates the international norms of the CRC and other UN rules and guidelines regarding juvenile justice administration, as manifested in some formerly colonized countries that have retained colonial-era legislation. Some countries, like Vanuatu, have experienced conflicts because the application of new domestic legislation has been challenged by traditional law and custom. Tribal leaders and community chiefs, skeptical of the Western values the CRC seems to represent, expressed concern that the Convention's provisions might alienate children from their traditional values and customs and accelerate youth delinquency.
In complying with the CRC, many states assign its juvenile justice provisions low priority since the plight of young offenders attracts far less sympathy and support for scarce resources. Besides creating or strengthening juvenile justice administration, the young offender's right to education is generally neglected by states in contrast to their willingness to expand education for other children. The lack of sympathy this reveals is often exacerbated by the mass media's proclivity to link types of crime with young offenders in the public's imagination, and to frequently distort the pervasiveness of juvenile delinquency in society. The Riyadh Guidelines specifically urge the media to "portray the positive contribution of young persons to society" since it has a substantial influence on the public will for either punitive or rehabilitative change in the juvenile justice system.
Global diplomacy is also affected by differences between national juvenile justice systems. Extradition treaties between countries must account for different views concerning the death penalty. This is especially true in relations with the United States, since it is one of the few countries that permits this sentence for those who commit capital crimes before age eighteen. Contravening the emerging international norm, twenty-three states within the United States still allow the death penalty for convicted youth under eighteen or life imprisonment without possibility of parole. Since 1985, only Bangladesh, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, the United States, and Yemen have executed offenders younger than eighteen. Other international difficulties emerge with detained children who are in conflict with immigration laws in Australia, the United States, and Germany, among others. Abuses against certain minorities also bridge national borders, as illustrated by the Roma's plight in Italy, Slovakia, and the Czech Republic. An effective and integrated approach to address global increases in cross-border youth prostitution and drug-dealing is a continuing topic of international concern for juvenile justice administration.
Feld, Barry C., ed. 1999. Readings in Juvenile Justice Administration. New York: Oxford University Press.
Shoemaker, Donald, ed. 1996. International Handbook on Juvenile Justice. Westport, CT: Greenwood Press.
United Nations. 1985. Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). G.A. Res. 40/33, 40U.N. GAOR Supp. No. 53 at 207, U.N. Doc. A/40/53.
United Nations. 1989. Convention on the Rights of the Child. G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49.
United Nations. 1990. Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines). G.A. res. 45/112, annex, 45 U.N. GAOR Supp. (No. 49A) at 201, U.N. Doc. A/45/49.
United Nations. 1990. Rules for the Protection of Juveniles Deprived of their Liberty. G.A. res. 45/113, annex, 45 U.N. GAOR Supp. (No. 49A) at 205, U.N. Doc. A/45/49.
United Nations. 2002. Report of the Committee on the Rights of the Child. U.N. GAOR, 57th Sess., Supp. No. 41, U.N. Doc. A/57/41.
Annan, Kofi. A. 2003. "We the Children: Meeting the Promises of the World Summit for Children." Available from www.unicef.org/specialsession/about/sg-report.htm.
Cothern, Lynn. 2002. "Juveniles and the Death Penalty." Available from www.ncjrs.org/html/ojjdp/coordcouncil/index.html.
Defence for Children International. 2003. Available from http://defence-for-children.org/.
Human Rights Watch. 2003. "Juvenile Justice." Available from www.hrw.org/children/justice.htm.
Human Rights Watch. 2003. "World Report 2003." Available from www.hrw.org/wr2k3/.
United Nations. 1989. Convention on the Rights of the Child, U.N. Doc. A/44/49. Available from www.unhchr.ch/html/menu2/6/crc/treaties/crc.htm.
United Nations. Office of the High Commissioner for Human Rights. Committee on the Rights of the Child. 2003. Available from www.unhchr.ch/html/menu2/6/crc/.
DIANE E. HILL
The American judicial system operates on the premise that "children have a very special place in life which law should reflect" (May v. Anderson, 1953). A prime example of this "special place" for children who are offenders is the U.S. juvenile justice system, with responsibility for protecting the general public from juvenile offenses while observing an intricate network of legal rights and procedures for those caught up in the system.
Social welfare. The social welfare era (pre-1899) of American juvenile justice had its roots in centuries-old English common law. Derived from the royal prerogative, the early common law gave the English Crown the right and responsibility to protect persons deemed legally incapable of caring for themselves. Protection of children, however, was normally confined to families of the landed aristocracy, with an eye toward securing financial reward for the Crown itself. After the American Revolution, the states assumed for themselves the authority held by the Crown, but they extended protection beyond the landed gentry.
Throughout most of the United States' early history, children were viewed as legal incompetents in family and financial matters until they reached the age of majority (age twenty-one for most of U.S. history). The law remained generally unconcerned with affairs within the family and recognized almost absolute parental authority over children. Supported by religious and educational views that emphasized corporal punishment, parents and educators were free to use whatever means they deemed appropriate to break or to beat down disobedient children. Courts rarely interfered with parental and school disciplinary practices. This "handsoff" approach to problematic behavior by children generally characterized governmental approaches until the early and middle decades of the 1800s.
In nineteenth-century America, the Industrial Revolution forced people to live in close proximity to each other and to confront the social challenges that came with the urban lifestyle. The changes that were taking place were especially significant with respect to children, and states quickly recognized the need to deal with children who were considered incorrigible or who posed a problem to their families or to the community.
In direct response to these concerns, the state of New York and later the city of Philadelphia established Houses of Refuge. These privately funded houses were designed to provide custody for children who had committed criminal offenses or who were found to be runaways or vagrants. These institutions were essentially established to save children from a life of crime and the consequences of incarceration with adults. By the end of the nineteenth century, concern for these children became widespread and similar institutions to house all wayward children were created in a number of major cities. This concern served as a basis for the creation of juvenile courts, through which states could intervene officially on behalf of children who had committed criminal acts.
Socialized juvenile justice. The socialized juvenile justice era (1899–1966) began with the advent of the JUVENILECOURT, a product of the social and political movements from the 1890s through the early 1900s. These movements have been characterized alternatively as Progressive child-welfare movements reaching out to rescue children from the harsh criminal justice system or as mechanisms to impose middle-class values upon poor and powerless children. Whatever the motives for its creation, the juvenile court idea took root and spread throughout the country. By 1912, about half of the states had juvenile courts, and by the end of the twentieth century juvenile courts existed in every state.
Until 1966, the juvenile justice system operated under a concept of law and justice fundamentally different from other American judicial systems. Instead of reacting to violations of law or providing a forum for resolution of legal disputes, the socialized juvenile justice system attempted to intervene before serious violations of law occurred. This approach involved predicting the future behavior of a child rather than deliberating over evidence of a child's past criminal acts. It was designed to offer approximately the same care, custody, and discipline that a loving parent would offer to a child. Acting in the capacity of a foster parent, the state assumed the nearly unchallengeable authority of a parent over a child.
All of the basic functions were performed in the socialized juvenile justice system that are performed in the current system, albeit in a much more informal and perfunctory manner. The socialized system simply left presentation of the child's side of the case to the same police officer or probation officer responsible for presentation of the state's side of the case.
Defendants' rights. The defendants' rights era (1966–1990) began when the Supreme Court examined the socialized era and expressed a "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" (Kent v. United States, 1966). In 1967 the Supreme Court imposed the requirements of constitutional due process upon the juvenile court's adjudication hearing in IN RE GAULT, including the right to defense counsel for the juvenile, the right to notice of the charges and hearings, the right to confront and cross-examine opposing witnesses, and the right to remain silent and not to testify against oneself.
These basic procedural rights were bolstered in 1970 when the Supreme Court decided that delinquency cases must be proven beyond a reasonable doubt by the state, the same level of proof required in adult criminal cases (In re Winship, 1970). Since the general rules of evidence from criminal court also are followed in juvenile court, these juvenile adjudication hearings became almost indistinguishable from criminal trials, except that the Constitution does not require that juvenile cases be decided by juries (McKeiver v. Pennsylvania, 1971).
These procedural requirements had a profound effect upon the juvenile court process. Assurance of representation by a defense attorney meant that the hearings were converted from informal conferences into adversarial contests, often quite similar to criminal trials. Proof requirements increased the focus upon the elements of each offense charged and decreased the emphasis upon the individual child.
Retribution and responsibility. The juvenile justice system entered a retribution and responsibility era in 1990. The defendant's rights of juvenile offenders remained generally intact, but in the early 1990s American society became much more focused on juveniles being held responsible and suffering retribution for their offenses. This meant that more cases were transferred from juvenile to criminal court and the discretion given to prosecutors to file juvenile cases directly in adult criminal court was increased. This was a complete reversal of the original impetus for the creation of the juvenile justice system in the early 1900s, which was to remove children from the punitive criminal justice system in order to provide them with treatment and rehabilitation.
A relatively new type of statute, known as blended sentencing or extended juvenile jurisdiction, is also becoming more popular as an effort to merge critical functions of the juvenile justice system and the adult criminal system. Blended sentencing allows the adult criminal judge or the juvenile judge to impose both a juvenile sentence and, subsequently, an adult sentence for those juvenile offenders who should be incarcerated beyond the age of majority. This type of legislation is seen as a way to detain juveniles who may be too young for imprisonment in adult jails at the time of the offense but who should not be released in just a few years. Typically, the adult sentence is stayed pending good behavior while serving the juvenile sentence. However, for particularly heinous crimes, such as murder or rape, the sentence becomes effective immediately after the juvenile reaches that state's age of majority. Variations of blended sentencing statutes range from the juvenile receiving either an adult sentence or a juvenile sentence to the juvenile receiving one combined sentence consisting of both juvenile and adult incarceration. A contiguous blended sentence allows the juvenile court to impose a juvenile sanction that may remain in force beyond the age of the court's extended jurisdiction.
In other modern legal systems, the youthfulness of juvenile offenders typically is an explicit factor in both the processes pursued and the sentences imposed, but few other countries have officially separate juvenile courts as found in the United States. Generally, the offenses and special needs of children are handled much more informally elsewhere, and American sanctions imposed on juvenile offenders are much more severe than almost anywhere else in the world.
The concept of children as offenders encompasses the instances in which persons under the juvenile court age limit (usually age eighteen) commit acts that harm or threaten to harm the persons and/or property of others or, in some cases, of themselves. Most of these acts would be crimes, but they are not treated as such because the actors are children.
Traffic offenses were originally treated no differently from other juvenile offenses. However this practice has come under considerable criticism, and the trend is to relegate less-serious traffic offenses to traffic court. The teenage driver is treated just as an adult driver would be, except that the teenager may have more restrictions placed on their driver's license and they may lose their driving privileges more easily than would an adult driver. More serious traffic offenses, such as reckless homicide, tend to remain in juvenile court and are processed as regular delinquency cases. Some jurisdictions allow the trial proceedings to be held in either the juvenile court or the traffic court, but the Supreme Court has made it clear that trials in both courts for the same offense would be unconstitutional (Breed v. Jones, 1975).
Status offenses cover a range of noncriminal behaviors by children and may account for up to one-half of the total work load of juvenile courts. Status offenses are comparatively vague, all-encompassing behaviors, such as habitual truancy, that could easily be interpreted to include the behavior, at some time, of every child. As a result, juvenile courts have essentially unchecked power to find almost any child guilty of a status offense. Juvenile courts also have the power to order almost the same punishment for status offenders as for delinquents, ranging from probation while continuing to live at home to placement in a secure institution far from home. Thus, status-offender jurisdiction remains broad and sweeping as compared to the comparatively narrow delinquency jurisdiction.
An act of DELINQUENCY is defined generally as a violation of a state or local criminal law, an act that would be a crime if committed by an adult. Some states have limited this broad definition of delinquency by excluding the most serious and/or the most minor criminal offenses. Such jurisdictions will exclude, for example, any criminal offense punishable by death or life imprisonment. At the other end of the scale, some jurisdictions exclude such minor crimes as traffic offenses and fish and game law violations. Some acts of delinquency are law violations that apply only to children. Violations of curfew laws by minors is the most common example, but others include possession of air guns or drinking alcohol. Correctional alternatives for delinquents range from community probation to institutionalization for several years.
The most serious criminal offenses, such as murder, rape, and robbery, typically result in the teenager being prosecuted in adult criminal court, either after having been transferred from juvenile court or having been filed directly in criminal court from the beginning. In most jurisdictions, juvenile offenders convicted of such serious criminal offenses can and do receive the harshest adult sentences, including life in prison and even the death penalty. These most severe American sentences are nearly unmatched by other modern societies. Prison sentences in the United States generally are much longer than would be found for the same offenses elsewhere, and most other nations have eliminated the use of the death penalty for juvenile offenders. By the early twenty-first century, only the United States, especially in the state of Texas, continued to execute offenders for crimes committed as juveniles.
When children within the age limits of juvenile court jurisdiction commit acts of delinquency or status offenses, the juvenile justice system usually has the authority to process them accordingly. It is not unusual for juveniles and their parents to voluntarily contact the police juvenile officer or the juvenile probation officer without an arrest or a request to appear. Most often the family is referred to other social service agencies for the assistance they request, but in some cases official court action is deemed appropriate.
The arrest of a child is not significantly different from the arrest of an adult. Considerable physical force can be used to effect the arrest, up to and including deadly force if absolutely necessary, although this is rare. Along with the arrest, there is a wide variety of police investigative activities necessary to gather evidence for use in the case being prepared against the juvenile. This may involve, for example, search of the child's person, home, car, or school locker. The police must give the required warnings prior to custodial questioning, which include the right to remain silent and the right to have an attorney present during questioning–though there is some ambiguity in the law on this point (Fare v. Michael C., 1979). Some states prohibit questioning of children if their parents are not present, while other states require that the child first consult with an attorney before being allowed to make any statement.
If there are no parents to take the child, if the child's parents refuse to take the child, or if the situation is so serious that release seems inappropriate, the child may be detained pending further proceedings. The decision to do this is first made on the spot by a juvenile probation officer, but soon thereafter a detention hearing is held before a juvenile court judge. The policy of denying pretrial release to juveniles to prevent interim offenses was approved as constitutionally acceptable by the Supreme Court in 1984 (Schall v. Martin).
The next step is the intake hearing, which is the first stage of the juvenile court process. Here potential cases are screened for appropriateness for further, more formal action. Typically, the juvenile probation officer meets with the child and parents to discuss the police charges. The child is asked to give his or her side of the story, and everyone tries to determine whether or not formal court action will be necessary to resolve the matter.
If the case is not diverted at the intake hearing, the probation officer initiates a formal juvenile court petition under the authority of the juvenile court judge, establishing a formal prosecution of the juvenile in a court of law. The juvenile petition alleges that the child violated certain specific laws on a certain date in a certain place in a certain manner. Status-offender petitions are somewhat less specific but also allege the violation that is the basis of the case, and very serious juvenile offenses might be filed in directly adult criminal court.
In juvenile court a trial is referred to as an adjudication hearing, although it is quite similar in procedure to the criminal court trial. The prosecuting attorney presents the evidence for the state tending to prove that the juvenile committed the offenses alleged in the petition, and the defense attorney counters with evidence tending to cast doubt on that evidence. In almost all states the adjudication hearing is presented to the juvenile court judge alone, who returns the verdict and decides upon the proper sentence or disposition. Juvenile hearings are almost always closed to the public and press.
If the child has been adjudicated to be a delinquent or a status offender, then the juvenile justice process moves into the sentencing, or dispositional, stage. During the period between the adjudication hearing and the disposition hearing, the probation officers prepare a social history or presentence report. In addition to the probation officer's social history report and disposition recommendation, the juvenile court considers evidence and disposition recommendations presented by the juvenile's attorney, the parents, and anyone else knowledgeable about the child.
The dispositional alternatives available to the juvenile court judge in delinquency and status-offender cases are various forms of probation and institutionalization. Generally, younger juveniles with minimal previous offenses who have not committed very serious offenses tend to be placed on probation, while institutions are reserved for older juveniles with past records and those who have committed more serious offenses. The juvenile offender's record is kept confidential; and it may even be sealed and ultimately expunged from all official records, as if the offense never happened.
Feld, Barry C. 2000. Cases and Materials on Juvenile Justice Administration. St. Paul, MN: West.
Feld, Barry C. 2003. Juvenile Justice Administration in a Nutshell. St. Paul, MN: West.
Fox, Sanford J. 1970. "Juvenile Justice Reform: An Historical Perspective," Stanford Law Review, 22: 1187–1239.
Mack, Julian W. 1909. "The Juvenile Court." Harvard Law Review 23: 104–122.
VICTOR L. STREIB
C. ANTOINETTE CLARKE