How Our Roller-Coaster Juvenile Justice System Began

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(Part 1 of 6)

Judge Steven TeskeJuvenile justice in America is akin to a roller coaster ride — when it goes up, it always goes down, and with kids screaming.

Just when we learn how to better the system that will make kids better, something comes to tear it down.

The trend today is to reach for what works to improve kids’ lives, but looking back at the tracks it becomes clear that there have been other peaks of joy and falls filled with screams.

I think more folks now realize a basic truth of effective juvenile justice: how we treat our kids today will decide what our adults will look like tomorrow.

The first climb in our ride began when the first juvenile court was established in 1899. Born out of public outcry over the abusive treatment of kids shackled and paraded alongside adult criminals in jail and courtrooms, the juvenile court was the first step toward what today is called “sight and sound separation.”

Even folks back in the late 19th century figured out that placing kids in bad environments make for bad adults.

Despite that outcry — from three women who had convinced the Illinois legislature to create a separate court for juveniles — kids lack the power of persuasion to influence the adults in control to do what is right for kids. They can’t enter into contracts or own property, and they can’t vote. They have no voice in a country whose politics is driven by the loudest voice.

Too often adults seem more interested in how juvenile justice legislation can be used to forward their own political interests than in the merits of what the legislation can do for our children.

Kids are second-class citizens, and second-class citizens tend to be taken advantage of by the adults who wield the power. So the roller coaster ride took a plunge.

Although the creation of juvenile courts was a good thing, kids didn't always fare better there because of their second-class status. More judges than not approached their courtroom with a parens patriae bent of mind, or the power to act as a parent without regard to due process — right to notice, opportunity to be heard and so on.

Parens patriae can be good or bad depending on the judge’s disposition toward the handling of kids in their courtroom. The difference between a well-rounded child and an abused and neglected child is the same difference between a good parent and a not so good one. The treatment a child gets in a parens patriae courtroom depends on that judge’s own parenting skill, and that can be a crap shoot.

Take, for example, my friend and mentor Judge Ted Rubin, who presided over the Denver juvenile court in the ’60s. He was a self-disciplined jurist who tempered parens patriae by emphasizing due process in the courtroom. He understood that a kid’s immaturity did not give adults a license to treat them as second-class citizens by short-shrifting the most basic right all citizens possess when accused of a crime, the presumption of innocence.

In those days many judges were not a Ted Rubin, and instead they would approach kids with a presumption of guilt.

This fact became clear in 1964 when a 15-year-old was arrested for making an obscene phone call to a neighbor. He was placed in a detention home without informing the parents. A petition wasn't filed until the day of the first hearing. At the trial, the victim didn't appear, but the kid was found guilty despite no presentation of evidence. He was convicted and sentenced to detention until his 21st birthday. If he had been an adult, the maximum sentence would have resulted in a $50 fine and two months in jail.

The kid’s name is Jerry Gault, and now you know the rest of the story.

Last year we celebrated the 50th anniversary of the landmark U.S. Supreme Court decision In re Gault that gave kids the same rights as adults when accused of a crime.

What happened to Jerry Gault became the impetus for Congress to do something to promote best practices in delinquency matters, and so they passed the Juvenile Justice Delinquency Prevention Act (JJDPA) to protect kids in four ways: Removal from adult jails, sight and sound separation, reduce racial disparities, and keep kids who committed status crimes (which would not be crimes if they were adults) out of detention.

And so the roller coaster climbed upward again.

When it looks like we have taken two steps forward, something happens that takes us one step back, and sometimes two or three steps back.

After passing the JJDPA to deinstitutionalize status youth, Congress changed its mind and added the valid court order exception allowing status youth to be jailed.

But the worst regression came in the ’90s when juvenile violence dramatically increased and politicians questioned the ability of juvenile courts to respond. So they turned instead to automatic transfer laws sending kids to death row, life in prison and mandatory minimum sentences, without the possibility of parole.

States also toughened their juvenile laws by increasing reliance on youth prisons.

Educators also jumped on the “get tough” bandwagon by creating zero tolerance policies resulting in significant increases in suspensions and expulsions. The push-out of students worsened when police were placed on campuses. Misbehavior once attributed to teenage immaturity and handled in the principal’s office became a crime and handled in the juvenile court.

And if the “get tough” trend wasn’t bad enough, the next decade brought a substantial reduction in federal funding, causing states to question the benefits of complying with the protections of the JJDPA.

And so the roller coaster spiraled downward yet again.

But today’s trends in juvenile justice have taken us to the next peak of the roller coaster track. This is largely because of a combination of reasons that includes adolescent brain research, poor outcomes of the “get tough” practices, evidence-based studies into what works, and, believe it or not, the Great Recession of 2007-08, which caused many leaders to introduce a cost-benefit analysis approach to juvenile justice policymaking.

The trends of the past influence what we do today, and what we do today will influence the trends of tomorrow. Through a series of columns we will be taking a closer look at the past to describe what we are doing today, why and what will it look like tomorrow.

But the bigger question — when will this roller coaster take the next plunge, and how scary will be the ride when that day comes?

Steven Teske is chief judge of the Juvenile Court of Clayton County, Ga., and vice chairman of the Governor's Office For Children and Families. He is a past president of the Council of Juvenile Court Judges and has been appointed by the governor to the Children & Youth Coordinating Council, DJJ Judicial Advisory Council, Commission on Family Violence, and the Governor's Office for Children and Families.

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