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Journal Issue: The Juvenile Court Volume 6 Number 3 Winter 1996

The Juvenile Court: Analysis and Recommendations
Carol S. Stevenson Carol S. Larson Lucy Salcido Carter Deanna S. Gomby Donna L. Terman Richard E. Behrman

The Jurisdiction of the Juvenile Court Today

Since 1899, the juvenile court has primarily handled three types of cases: delinquency, status offenses, and child abuse and neglect. Juvenile delinquency cases are law violations by minors which, if committed by an adult, would be crimes. By contrast, status offenses are noncriminal misbehaviors which are illegal only for minors. Common examples include truancy and running away. Until the early 1960s, both criminal and noncriminal behavior were considered to be forms of delinquency; the law did not distinguish between status offenders and delinquents. In child abuse and neglect cases, the court provides protection to children who are allegedly abused or neglected. During 1994, delinquency cases comprised 64% of the total national juvenile court caseload while status offenses made up 15%, and abuse and neglect cases, 16%.9

Each of these case types is discussed below, with descriptions of the children and court processes involved and the current practices and policy issues. However, before turning to this jurisdiction-specific discussion, it is important to note that, although each of these types of cases is very different from the others, there are some common themes. The most obvious, of course, is the need for judges handling these cases to understand the development of children and to make legal decisions with attention to the needs of children and their families.

Second, even though the court is only one of many institutions working with children and their families, it wields unique and quite awesome power in delinquency, status offense, and child abuse cases. Juvenile court judges can separate children from their parents; they can order children to live in confined settings; they can terminate the rights of biological families and create new parental rights.

Because these decisions are so serious and fundamental, ensuring that the court has adequate resources is very important as it handles each type of case. Judges need training, information, and workable facilities. Adequate representation must be available for the parties in court proceedings. Communities need to have sufficient, safe, and effective programs and placements available for the children who come before the court.

As will be clear from the following discussion, the juvenile court's work is very difficult and involves some of the most emotion-laden and controversial issues in our society. As such, its decisions often find disagreement. The extent to which the court's discretionary authority in individual cases should be expanded or restrained continues to be debated for all types of cases before the court.

Finally, because these courts make decisions regarding so many difficult societal problems, they are often the subjects of intense media attention and political firestorms. An important theme in this journal is the need for judges to play a leadership role, both among child-serving agencies and within the broader community, to encourage deliberative and thoughtful approaches to these problems, rather than ones that are hastily reached.

Delinquency

The handling of delinquency cases is the work of the juvenile court that is best known to the general public. When minors commit law violations, typically their cases are brought (petitioned) as delinquency cases in juvenile court. These cases include misdemeanors such as petty theft and vandalism as well as felonies such as robbery and aggravated assault. The maximum age of the court's delinquency jurisdiction is set by state law; in 37 states and the District of Columbia, it is 17 years old; in 10 states, it is 16; and in 3 states, it is 15.

Today, the juvenile court has become a focal point for public concern about the country's high rate of crime and the increasing violence of juvenile crime. In recent years, there has been continuing criticism of the juvenile court's perceived leniency toward juvenile delinquents.10 The inability of the juvenile court in many jurisdictions to impose a sentence that continues beyond the age of 21 is a common example. High-visibility serious and violent crimes committed by juveniles have captured the public's attention and drawn the treatment of juvenile offenders into the larger efforts to "get tough" on crime that have been politically popular for the past 20 years.11

Public fear of juvenile crime has resulted in changes in the delinquency jurisdiction of the juvenile court. Since 1992, legislative and executive branch activity in 41 states has limited the juvenile court's jurisdiction over cases involving serious, violent, and chronic offenders, and shifted the court's philosophy from the rehabilitative tradition of addressing the offender rather than the offense toward a more punitive system focused on the offense itself. For example, since 1990, 14 states have amended their codes to explicitly list public safety as a purpose of the juvenile justice system; 28 states now list punishment of offenders as either the primary or one of several purposes of the juvenile justice system.12 More significantly, since 1992, all but 10 states have adopted or modified laws to make it easier to prosecute juveniles in adult criminal court.13 In most instances, conviction of a minor in adult court exposes the minor to the possibility of a state prison sentence instead of placement in a juvenile facility offering rehabilitative programs.

Although violent juvenile crimes grab headlines and tend to have a great influence on the juvenile justice system, most juvenile court cases involve far less serious crimes. In fact, the bulk of the court's delinquency work is in the handling of a large volume of crimes against property such as larceny, vandalism, and motor vehicle theft. In 1992, police made 2.3 million arrests of juveniles nationally. Of these, approximately two-thirds, or 1,471,200, resulted in a referral to juvenile court. Contrary to public perception, the most serious charge was a property offense in 57% of the cases; an offense against a person, such as robbery or aggravated assault, in 21% of the cases; a public order offense, such as disorderly conduct, in 17% of the cases; and a drug law violation in the remaining 5% of the cases.14

Although young people are not disproportionately responsible for violent crime, they do commit more than their share of property crimes.15 In 1992, for example, 10- to 17-year-olds comprised 13% of the U.S. population and were responsible for 13% of all violent crimes cleared by arrest but a full 23% of all property crimes.16

Youths Referred to Juvenile Court

Juvenile court statistics show that a large percentage of juvenile crime is committed by a small percentage of the juvenile population. In 1993, 80% of the juveniles referred to juvenile court on delinquency matters were male,17 61% were under age 15, 65% were white (which includes Latinos), 32% were African American, and approximately 4% were other races. Juveniles in urban areas had a 30% higher delinquency case rate than those in rural areas of the country, and the cases handled in large counties involved more crimes against people and drug offenses than those of less populated counties.

African-American minors are disproportionately involved in juvenile court processes relative to their representation in the population at large. The article by Snyder in this journal issue provides details about the overrepresentation of African-American minors at every stage of the juvenile court process. For example, in 1991, while only 15% of the juvenile population was African American, 66% of the youths confined in long-term public juvenile correctional facilities were African American.18 Federal law requires states that have disproportionate representation to make efforts to reduce the proportion of minority juveniles detained or confined in all secure facilities.19 Juvenile court judges can play a role in addressing the disparate treatment of minority youths through their decisions regarding pretrial detention and final disposition and their leadership in the community in the development of programs for minority youth.

Fifty-nine percent of the young people coming into juvenile court never return a second time. However, as Snyder points out, each subsequent time a juvenile is referred to court, the odds that he will be in court again increase. Forty-one percent of all juveniles with one referral will have a second referral to court, 59% of those with a second referral will return for a third time, and 67% of those will be back a fourth time. The small group of juveniles referred to court four or more times—16% of all juveniles referred to court—is responsible for nearly two-thirds of all violent crimes and half of all property crimes handled in juvenile court.20

Juvenile Court Process

The juvenile justice system includes law enforcement, the juvenile court, the juvenile probation department, and juvenile corrections. The juvenile court process varies across states and communities but can best be conceptualized as a series of decision points, each of which directs the case along a particular path.

Eighty-five percent of delinquency case referrals come from law enforcement; the remainder come from social service agencies, schools, parents, probation officers, and victims. 21 Following arrest, approximately one-third of all juvenile arrests are diverted from the juvenile court system into alternative community programs such as community service and restitution, and no formal charges are made. The remaining cases are referred to juvenile court intake, which is generally the responsibility of the juvenile probation department or the prosecutor's office. Of the cases that continue in the system, approximately half are handled formally through filing of a petition in the juvenile court. The other half are dismissed, diverted to juvenile justice or community programs at intake, or handled informally through such means as voluntary agreements or informal probation, in which the voluntary agreements are monitored by a probation officer. The cases that are handled formally by the juvenile court always include those involving the most serious and chronic juvenile offenders.

At each of these decision points, a set of highly subjective factors can come into play. Nonlegal factors such as the juvenile's ties to family, school, and community influence whether an arrest is made, whether diversion occurs, and the nature of placement ordered. This decision-making process has been criticized because it can lead to erroneous, inequitable, and inconsistent decisions.22

Current Policy and Practice Issues

The sweeping changes in public policy affecting the juvenile court's delinquency jurisdiction have been the responses to concerns about serious, violent, and chronic offenders and the perceived leniency of juvenile court sanctions toward these juveniles. A survey of recent state legislative action summarizes the types of changes in five broad categories: removing more serious offenders from the juvenile justice system in favor of criminal court; experimenting with new disposition and sentencing options; changing correctional programming in light of a new population of young criminals in adult prisons; modifying confidentiality laws in favor of more open proceedings; and including victims of juvenile crime in the juvenile justice process.13 This discussion focuses on three critical issues facing the court today: (1) transfer, (2) legal representation, and (3) dispositional alternatives.23

 

  • Transferring Juveniles to Adult Court. Juveniles can end up in adult court through one of three methods. First, juvenile court judges can transfer cases to adult court following a hearing, a process known as judicial waiver. Second, prosecutors in some states can directly file certain cases in either juvenile or adult court. Finally, some state statutes exclude certain types of crimes or chronic offenders from juvenile court jurisdiction; this is known as statutory exclusion or legislative waiver.

Between 1992 and 1995, 40 states and the District of Columbia changed their laws to restrict juvenile court jurisdiction in a variety of ways. Some states lowered the age of jurisdiction for adult criminal court for all offenses or for serious offenses; others expanded the types of offenses eligible for transfer to criminal courts or allowed or mandated transfer of juveniles to adult court through statutory exclusions; and a number gave prosecutors the discretion to file certain cases in criminal court.13 In addition, state statutes have changed the criteria for judicial determination of transfer decisions so that youths are presumed to be unfit for juvenile court in serious cases.24

Getting tough on juvenile crime is the primary motivation for moving more cases to the adult criminal justice system. Some commentators argue that transferring juveniles to the adult system is worthwhile for its symbolic value alone; transfer is a statement that juvenile crime is taken seriously. Others believe that the fear of being transferred to adult court will deter juveniles from criminal behavior.25 Still others support the transfer of more cases to adult court to provide the additional due process protections required in adult court, such as the right to a jury trial.26

Nationwide, the number of formal delinquency cases transferred by judicial waiver to criminal court increased from 7,005 cases in 1988 to 11,798 cases in 1992.27 However, the total number of delinquency cases waived by all transfer methods cannot be tabulated because there are no national data on the numbers of juvenile cases filed directly in criminal court by prosecutors or the numbers of juveniles who are in adult court because of a statutory exclusion. Reported data from selected jurisdictions show that the rates of direct filing by prosecutors vary: in some jurisdictions, the number of such cases is as high as 10% of all formally processed juvenile court cases; in others, it is as low as 1%.28

Transfer is not being used only to send violent offenders to adult court. While there is a higher likelihood of a juvenile's being transferred when charged with an offense against a person or a drug offense, in 1992, property offenses made up the largest proportion of juvenile cases transferred to adult court by juvenile court judges.29

While the stated purpose of moving more cases to adult court is increased public safety, research findings do not substantiate the claim that transfer of increasing numbers of juveniles to adult criminal court reduces the rate of reoffending by this juvenile population.20,30

 

  • Who Best Makes the Transfer Decision? The option of transferring cases to adult court is available to juvenile court judges in 46 states and the District of Columbia. Legislative waivers make transfers automatic in certain cases in 37 states and the District of Columbia. Ten states and the District of Columbia give the prosecutor the option to file a case directly in either adult or juvenile court.31 There are several dangers in each approach. A prosecutor's decision to file a case directly in adult criminal court is made unilaterally without the benefit of a hearing where defense counsel and probation officials can provide important information about the juvenile in question. Prosecutorial discretion to determine where a juvenile is tried is potentially subject to political pressure. State statutes mandating transfer if there is a specified combination of age and the number and seriousness of the offenses preclude the consideration of the individual circumstances that apply in each case. Moreover, such legislative changes can be driven by a single, high-visibility case rather than a comprehensive assessment of the cases before the court.

Transfer decisions are best made by judges who are given explicit directions as to the factors that must be considered.32 This is not because individual judges are immune to biases and pressures, but because, unlike the prosecutor, the judge makes this decision only after hearing from a variety of perspectives in a judicial proceeding: the prosecutor, defense counsel, and probation officials. This more deliberative decision-making process retains some of the benefits of juvenile court jurisdiction while addressing public safety and accountability concerns regarding serious and violent juvenile offenders.

RECOMMENDATION

 

  • The determination as to whether a minor charged with a serious crime should be transferred to the criminal court for trial as an adult is best made by judicial hearing. The varied circumstances of each case and the distinct characteristics of each minor require close examination by an experienced judicial officer who can hear from all parties to the case and evaluate the important personal and community factors related to the choice of jurisdiction.

 

  • Representation. In the past, the juvenile court's role in intervening with wayward and criminal youths was justified by the theory of parens patriae, that the state stands in the place of parents and substitutes its authority for that of the family.33 Because of an interest in individualizing responses to cases, early court decisions were left largely to judicial discretion, often at the expense of the juveniles' due process rights. However, landmark U.S. Supreme Court cases of the 1960s rejected the parens patriae rationale and early court practices, and required that the basic constitutional safeguards of due process of the law apply in juvenile court proceedings. Since the U.S. Supreme Court cases of Kent v. United States34 and In re Gault,35 juveniles in delinquency proceedings have had the right to counsel, the right to notice of the charges against them, the right to cross-examine the witnesses against them, and the privilege against self-incrimination. For example, in the Gault case, the U.S. Supreme Court found that the benefits of more informal, individualized justice in the juvenile court system were not a substitute for due process protections guaranteed by the U.S. Constitution. In the intervening 30 years, juvenile courts have struggled, with varying success, to meet the Supreme Court's requirements.

Unfortunately, as the article by Ainsworth in this journal issue describes, considerable research shows that the juvenile court system today has failed to fulfill the promise of procedural fairness envisioned by the Supreme Court. Some critics argue that the changes necessitated by the Gault decision have led only to a more formalized, legalistic, and adversarial court.36 Others cite the juvenile court's inability to fulfill the due process guarantees as a reason for moving all juvenile offenders into adult criminal court.26

In juvenile court, as in any legal forum, a juvenile's key to knowing and exercising his or her rights is the effective assistance of legal counsel. Today, as juveniles face the potential for longer sentences and transfer to adult court, the role of legal counsel is critical to ensure that minors are not held unnecessarily in secure detention, improperly transferred to adult criminal court, or inappropriately committed to institutional confinement.

As Mitchell points out in this journal issue, and other court insiders and observers have confirmed, the sheer volume of cases heard by juvenile court makes it difficult for each alleged delinquent to receive adequate and fair treatment. A recent report on the quality of legal representation in juvenile delinquency matters cited examples of defense attorneys handling more than 450 cases per year when national standards for juvenile cases call for caseloads not to exceed 200 annually. Lawyers may have as many as 40 to 50 cases on calendar for a single day.37

Not only are underrepresented juveniles and those represented by unprepared attorneys deprived of their constitutional rights, but their inadequate legal representation may also preclude informed judicial decision making about appropriate dispositions of the case. When defense counsel is unprepared to provide information about a delinquent's home or school life, or to investigate and recommend dispositional alternatives, the judge is more likely to act on the basis of the probation official's report, the prosecutor's input, or personal biases.

In some large jurisdictions, the rate of petitioned cases represented by counsel is as high as 97%; in other, predominantly rural, jurisdictions, as few as 65% of all juvenile cases are represented.38 Given the seriousness of potential sentencing outcomes in juvenile cases, the fact that in certain jurisdictions a substantial percentage of juveniles waive their right to counsel altogether is a cause for concern.39 The circumstances surrounding these waivers—suggestions from the bench and prosecutors that counsel is not needed because the case is not serious, parents' fears about the potential cost of representation, and the typically huge caseloads of defense attorneys—when combined with the youthfulness and inexperience of defendants, raise the possibility that juvenile waivers of counsel are not always made with the full understanding by the minors or their parents of the implications of such a decision.40

RECOMMENDATION

 

  • Every youth who is referred to juvenile court for formal processing in delinquency matters should be represented by trained counsel from the time of the detention hearing throughout the court process. Because of the possible inability of juveniles and their parents to understand the implications of waiving their right to counsel, this right should not be waivable at any phase of the juvenile court process for juveniles who are facing the possibility of out-of-home placement.

 

  • Dispositional Alternatives. Once a juvenile has been found to be delinquent, the task of the juvenile court is to order and oversee the appropriate disposition or sentence in the case. A hallmark of juvenile court has been the ability of the juvenile court judge to order sanctions that can potentially address the individualized needs of the juvenile delinquent before him, all the while balancing goals of rehabilitation of the juvenile, accountability for the delinquent's actions, and safety of the community. The availability of a range of effective alternative dispositions is key to the fulfillment of these multiple goals of the juvenile court.

As the article by Greenwood describes, a few exceptional communities have developed a wide array of programs that offer varying degrees of supervision and security. A large review of a number of studies that evaluated such programs found that community-based programs were significantly more effective than institutional placements in reducing recidivism (the percentage of youths who reoffend within a particular time period after their first conviction). Highly structured programs with education, vocational training, and life skills development components had better outcomes than less structured interventions such as counseling or general supervision. While less structured interventions produced rates of 50%, the highly structured community-based programs had recidivism rates of 30% to 40%.41

Ideally, all types of correctional programs serving large numbers of juveniles would be evaluated, and those found to be ineffective would be discontinued. In reality, a number of factors—including available resources and political will—may have a greater effect on which dispositions or programs are available than does reliable research. A good example cited by Greenwood is the rapid proliferation of boot camps for juveniles which have been instituted in 29 states since 1983 without any evidence as to their effectiveness. A 1995 evaluation of these programs in eight states found that four had no effect on recidivism, one resulted in higher rates, and three were effective on some recidivism measures. The programs with the best results had therapeutic components characteristic of some of the effective programs mentioned above.42

RECOMMENDATION

 

  • Communities should ensure that a range of dispositional alternatives, providing a continuum of sanctions from community service and supervised probation to incarceration of juvenile offenders, is available to respond to juvenile crime; particular attention should be given to those models that have shown, through evaluation, success in reducing recidivism.

To develop such a continuum of sanctions, the court must work closely with the probation department and community service providers and must enlist the cooperation of other public agencies including schools, health, and mental health departments. For quality control, the court should have access to accurate, ongoing data about the effectiveness of the programs to which juveniles are referred.

Future Directions

If present trends continue, the juvenile court will continue to be subject to changing legislation regarding its jurisdiction over delinquency cases. Policymakers interested in addressing the underlying problems of violent juvenile crime are seeking innovations that can address concerns about public safety and accountability while retaining some alternatives to adult prison sentences. One approach is to strike a midground between adult and juvenile jurisdiction, by combining the stricter due process protections and potential for more severe sanctions of adult court with the potential for rehabilitative dispositions available through juvenile court.

 

  • Blended Sentencing. Sixteen states have recently passed legislation to create blended sentencing options for certain delinquency cases.43 A more comprehensive approach that includes blended sentencing was established by Minnesota's 1994 Juvenile Crime Act.44 It creates a new category of serious offenders, extended jurisdiction juveniles (EJJs), who are tried as juveniles but receive full adult due process protections, including a jury trial, if they wish. EJJ minors are given an adult criminal sentence which is applied only if the juvenile does not complete the juvenile court disposition. The law gives serious offenders a final chance to benefit from the rehabilitative dispositional options of the juvenile court while limiting transfers to adult court by creating an intermediate category of juvenile offenders.

Because this law is new, little is known about its implementation in the courts. Ironically, it may be used by juvenile judges to place certain offenders in the EJJ category who would not have been likely to be transferred to adult criminal court. If these juveniles violate their juvenile court dispositions (probation, for example), they may end up serving adult sentences.45

 

  • Restitution and the Balanced Approach. Another reform strategy is the balanced and restorative justice approach, which combines community protection with efforts to hold juveniles accountable for their actions and to assist them in becoming more competent young adults. Some state statutes have adopted the balanced approach as their juvenile court philosophy. In a probation department using this approach, youths work under adult supervision on a project that creates something positive for the community and provides skill training while they earn money to repay the victims of their offenses. In contrast, in the traditional probation program, the youths are poorly supervised, receive no skill training, and have only minimal contact with their probation officers. Probation departments throughout the country have been trying to implement this approach, often by reorganizing old methods to fit into the model's goals of protection, accountability, and skills competency. General institutional resistance and limits in funding make the true reform necessary to implement this approach difficult to attain.46

Restitution is an increasingly popular way to hold juvenile offenders accountable for their actions by obliging them to "make amends" by paying their victims directly or performing community service. This practice is likely to grow in the future.47

Status Offenses

The juvenile court in particular and society generally have long struggled with how best to respond to status offenses, acts that are unlawful when committed by a minor but are not illegal if committed by an adult such as truancy, running away, and ungovernability. The continuing needs of young people for protection, supervision, and guidance by adults and the belief that antisocial adolescent behavior can be shaped and changed have been, and continue to be, justifications for juvenile court intervention in these cases.

Court jurisdiction over noncriminal youths predates the official arrival of the juvenile court in Illinois. As Fox describes in his article in this journal issue, nineteenth-century beliefs regarding the moral dangers of poverty led to intervention in the lives of poor children who were perceived to be in danger of becoming criminals if left in their "depraved" homes.48 Little distinction was made between these noncriminal youths and young criminal offenders in terms of intervention and treatment. Status offending continued to be treated as a type of delinquency until the 1960s and 1970s, when critics argued for services rather than incarceration for status offending youth, and states passed laws distinguishing status offenses from delinquency cases.49 The federal Juvenile Justice and Delinquency Prevention Act of 1974, described below and in the article by Steinhart in this journal issue, further solidified the distinction between status offense and delinquency cases.

A Profile of Status Offenders

The number of status offense cases nationwide is unknown. As Steinhart points out in his article, data are available only on the status offense cases formally brought (petitioned) to juvenile court, but there is no documentation of the cases that are handled informally. In addition, many cases that fit in the status offense category, such as running away, never come to the attention of authorities at all.50

Status offense cases formally processed by the court totaled approximately 97,000 in 1992: roughly 17,000 of those were runaway cases, 26,000 were truancy cases, 11,000 were ungovernability cases, 30,000 were liquor law violations, and 13,000 were other cases including violations of curfew and of valid court orders (VCOs) involving the juvenile.51

Overall, African Americans were only slightly more likely than whites to appear before the court for status offenses. However, the rate for runaway cases was 50% greater for African Americans than for whites; the truancy and ungovernability rates for African-American juveniles were twice those of whites; and liquor law violations were four times higher for white juveniles than for African Americans.51 These data do not include numbers of curfew violations by racial group, nor do they reflect recent increases in the enforcement of municipal curfew ordinances.

Forty-two percent of all status offense cases in 1992 involved females. This is in sharp contrast to the percentage of delinquency charges that were brought against females in 1992 (only 15%). Of all runaways brought into juvenile court that year, 62% were female and 38% were male. Females were involved in approximately one-third of all liquor law violations.52

Juvenile Court Process

Today the juvenile court still retains jurisdiction over status offenses in every state, although processing of these cases varies from virtually no intervention in some locales to highly developed intervention programs in others. Most status offense cases are not formally processed by the court. As many as 80% of all cases are diverted to community service programs or handled in other forums without the filing of case petitions.52 Truancy cases, for example, are often processed through the local school system, without the involvement of the court.53

Status offenders are brought to the attention of the court through a variety of means. Schools may report extended truancy to truancy officers who, if they fail to get the truant juveniles to attend school, petition the court to handle the cases. Some juveniles come before the court after being apprehended by law enforcement officials for violating curfews or local liquor laws. Parents who are unable to manage their children may themselves turn their children over to the court under state statutes which give the juvenile court jurisdiction over young people who are "ungovernable" or "beyond control."

The Juvenile Justice and Delinquency Prevention Act of 1974

Status offenders whose cases are processed by the juvenile court have essentially the same due process rights in court as do delinquents,49 but dispositions are very different. Federal law now discourages, except under very limited circumstances, the placement of status offenders in secure detention facilities (jails). The Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974, a response to criticisms against state practices of punishing rather than treating noncriminal minors, conditioned the receipt of federal funds on state efforts to deinstitutionalize noncriminal youth. It pronounced that juveniles "charged with or who have committed offenses that would not be criminal if committed by an adult . . . shall not be placed in secure detention facilities or secure correctional facilities."54 The act also encouraged states to develop service programs for status offenders as alternatives to secure detention.

According to the Office of Juvenile Justice and Delinquency Prevention, in December 1992, 34 states and three territories participating under the JJDPA were in full compliance with deinstitutionalization mandates.55 As Steinhart reports, detention levels have declined since the passage of the JJDPA. One study shows that detention rates for status offenders in the states participating in the JJDPA dropped by an average of 95% between each state's compliance start date and 1988.56

There are a number of indications that policy toward status offenders is moving toward greater control and more punitive responses. In 1980, the JJDPA was amended to allow the secure detention of status offenders who had violated valid court orders.57 Some states have exercised this detention authority more aggressively than others. In an article in this journal issue, Steinhart describes recent state challenges to the overall federal policy of deinstitutionalization of status offenses. Washington State, for example, changed its law in 1995 to permit secure detention of arrested status offenders,58 contravening the requirements of the JJDPA. Reauthorization of the JJDPA, which expired October 1, 1996, was debated in Congress. No decision was reached. The shape of the legislation and whether it will retain the status offender deinstitutionalization mandate are unknown.

Current Policy and Practice Issues

In addition to changes in state laws with regard to deinstitutionalization policies, changes in local practices with regard to status offenders reveal a trend toward greater regulation of this population. This is exemplified by the ever-increasing number of cities that have passed and are enforcing curfew ordinances. In contrast, some communities are focusing their efforts on providing better service programs and other alternative interventions to status offenders.

 

  • Curfews. According to a 1995 U.S. Conference of Mayors survey, more than 250 cities nationwide have curfew ordinances.59 In 1992, of 77 American cities with populations of 200,000 or more, 59 had curfew laws in place.60 Local political leaders justify municipal curfew ordinances as a way to decrease the number of crimes committed by youths and to protect children from crime61 by assisting parents to restrict their children's late-night activities and allowing police to remove juveniles from the streets during curfew hours. Some communities that claim success in reducing nighttime offenses with curfews are implementing day-time curfews as well. For instance, Austin, Texas, has a curfew between 9:00 A.M. and 2:30 P.M. on school days; children who are out on the streets during those hours can be brought in by authorities.62

The use of curfews is not without controversy. Some curfew ordinances have been successfully challenged on constitutional grounds for being overly vague or too broadly applied. However, the majority have been upheld.63 In addition, there may be unequal enforcement of curfew ordinances across races. For example, nearly 60% of the juveniles detained under a new curfew ordinance in San Jose, California, were Latino, although less than 30% of the city's youth population is Latino.64

The effectiveness of curfew laws in reducing juvenile crime is unclear. In fact, a 1995 review of existing literature on curfews found that "there is so little existing research on the effects of curfews that policymakers have next to nothing to guide them concerning the benefits and costs of a curfew."65

 

  • Developing Alternative Interventions. The violation of curfew laws or the commission of other status offenses is frequently a warning sign of problems in a youth's life.66 Some status offenders, such as runaways, are, in fact, victims of abusive situations at home.67,68 A 1984 study of 199 runaways indicated that 75% had been severely maltreated at home in the year prior to running away.69

Status offenses seldom result in direct harm to anyone other than the status offender. Placement of status offenders in secure detention is inappropriate both because status offenders are often victims and because their acts are of minimal harm to society. Furthermore, the placement of status offenders in secure detention may expose them to the negative peer influences of juveniles who have committed more serious offenses. More important, institutionalization separates minors from their families and does not provide status offenders and their families with the opportunity to receive appropriate services.

Though the policy of deinstitutionalization of status offenders reflected in the 1974 JJDPA has reduced the number of such youths incarcerated with delinquent youths, in most communities the need for alternative interventions through services and shelter has never been fully realized. The Metropolitan Court Committee of the National Council of Juvenile and Family Court Judges recommends a continuum of community services for status offenders, particularly truants, runaways, and substance-abusing and beyond-control children.70 Needed services may include counseling, medical care, social services, alcohol or substance abuse treatment, and both short- and long-term shelter.

Successful programs for status offenders are flexible and offer a wide variety of services.71 Juvenile court judges, because of their ability to convene community members and their role as advocates for children, are in strong positions to help communities develop successful programs to handle status offenders and their families.72 Communities can develop programs that adequately serve most status offenders. Given that, community programs should be the first line of intervention for status offenders. When initial community efforts at providing service fail in these cases, the court—with its ability to hold parties accountable—may be able to elicit positive action.

RECOMMENDATION

 

  • The first line of response to status offenders should be community and public services designed to help children and their families, with court intervention only after services have been offered but have not been successful, or if the child's behavior continues to pose a threat to his or her own safety or well-being.

Court-ordered incarceration of a status offender is appropriate only in exceptional cases when an adjudicated status offender repeatedly refuses to cooperate with the court or service providers, or when a status offender's behavior is proven to be of significant risk of harm.

Child Abuse and Neglect Cases

The juvenile court, working with law enforcement and child protective service agencies, is responsible for protecting those children whose parents or other legal caretakers abuse or neglect them. Cases that come before the court are those involving children who have been physically or sexually abused, abandoned, or so neglected by their parents that their care does not meet even minimal standards.

The goal of the court in handling these cases has always been to protect the children by first determining the validity of child abuse and neglect allegations and then deciding whether the children need to be placed in foster care or can remain at home with supervision and services from public or private agencies. However, as the article by Hardin in this journal issue discusses, several new roles were given to the court in the late 1970s. At that time, there was great dissatisfaction with the state intervention after child abuse and neglect had been identified. Many families were not receiving services from child welfare agencies, and although children were most often physically protected, a large number of children who were removed from home were being transferred from foster home to foster home with little or no effort made to secure a permanent home for them.73 Around the same time, there was a growing belief that parent-child bonding and attachment are critical for children and can best be provided through a stable and permanent home.74

The Adoption Assistance and Child Welfare Act of 1980 (Public Law 96-272)75 was passed to address the widespread dissatisfaction with child welfare practice and to promote permanency for children. The legislation put in place federal standards that states must implement to qualify for federal funding for out-of-home care. In response, many state laws were changed to adopt the following priorities in handling abuse and neglect cases: prevent out-of-home placement; reunify the family after a child is placed in foster care; or if reunification is impossible, find a safe and permanent home for the child in a timely manner. Federal law specified that, although this final step could be taken earlier, it must occur within 18 months of placement of a child in out-of-home care.

To achieve these goals, the federal legislation greatly expanded the court's role in handling these cases. Child welfare agencies would continue to plan and provide the services to families to keep them together or to reunify them. However, the new law gave the court many more responsibilities. Whenever a child is involuntarily removed from parental custody, the court must make a specific finding that continued placement with the family is contrary to the child's welfare. In addition, the court must find that the child welfare agency made "reasonable efforts" to prevent out-of-home placement of children or to reunify them if they have been removed. Federal funding for foster care placements is conditioned on the court's making the required finding of reasonable efforts. To make these decisions and perform an ongoing monitoring role, the court is required to hold periodic hearings.76

These statutory changes greatly increased the workload of the court in each child abuse and neglect case it handled.77 Although courts have always worked with child welfare agencies in handling these cases, the oversight responsibilities given to the court complicated that relationship with regard to the legal requirements and the day-to-day operations of both entities. Handling these cases now requires multiple hearings, not just one or two. This increased time demand in individual cases combined with an ever-greater number of cases reaching the court substantially increase the percentage of time courts devote to child abuse and neglect cases.

Profile of Child Abuse and Neglect Cases

Comprehensive and reliable data about child abuse and neglect reports and resulting juvenile court cases are not currently available.78 However, some estimates are available from developing national databases. In 1994, 4% of America's children, or 2.9 million youngsters, were reported as being abused or neglected.79 Nearly half of these reports were of neglect; 26% were of physical abuse; and 14% were of sexual abuse.79 Reports were made to either law enforcement (who then typically referred them to child welfare) or to child welfare agencies who either closed the case as unfounded or inappropriate for the agency to investigate, or investigated the allegations. Of the 2.9 million reports, about 1.6 million led to investigations. Approximately one million reports were found to be substantiated or indicated.79 Of these, most were handled informally by the child welfare agency entering into agreements with the family for services with no court oversight. There are no national data about the percentage of reports that result in court action. In some local jurisdictions, it has been as low as 3% to 4% of all reports80 or 21% of all substantiated cases.81

African Americans are overrepresented at several points in the child welfare system. Twenty-six percent of the annual child abuse and neglect reports concern African-American children, yet African Americans comprise only 21% of the general population.82 Overrepresentation is more striking in out-of-home placement. For example, approximately 4% of all African-American children are in foster care in New York and California, whereas the rates for Caucasian children in these same states range between 0.5% and 2%.83,84

Juvenile Court Process

Once a petition is filed by the child welfare agency alleging that the child has been abused or neglected and is within the court's jurisdiction, the court's work is substantial. First, if an out-of-home placement to protect the child's safety is deemed necessary by the child welfare agency, there is an emergency hearing either immediately before or immediately after removal to determine whether the child can be returned home while the trial is pending. The next step is a hearing to determine whether the child has been abused or neglected and whether the court has a basis for jurisdiction over the child. If abuse or neglect is established, the court makes a dispositional decision. In this hearing, the court reviews the child welfare agency's recommendations regarding custody and services for the child and family and makes a dispositional order. At that point, the child welfare agency typically takes over the day-to-day supervision of the case. However, the court will hold review hearings at least every six months. At each hearing, the court must determine if the child can remain in, or be returned to, the care of his parents. If the child is in out-of-home care, the court must make a decision about the permanent placement of the child within 18 months. If there is no possibility of family reunification, a decision may be made to terminate the parental rights, freeing the child for adoption. Depending on the state's law, hearings on the termination of parental rights may or may not be handled by the juvenile court.

Current Policy and Practice Issues

Implementation of Public Law 96-272 and compliance with its monitoring and permanency planning requirements continue to be the biggest challenges for the juvenile court in its work with child abuse and neglect cases. Unfortunately, it is not possible to know in any comprehensive way to what extent juvenile courts and the public child welfare agencies they monitor are successful in meeting the goals of this law. Public child welfare agencies have been sued in at least 21 states on behalf of children who have not received the benefits of permanency planning envisioned by this law.85 Likewise, in many instances, juvenile courts have been ineffective in their role as monitors of the social service agencies' delivery of services to families, because of both lack of understanding of the law and disagreement with its principles.76

The juvenile court is not alone in struggling to meet national goals of protecting children and ensuring safe and permanent homes for them in a timely manner. Other public and private agencies are working hard to find better ways to serve abused and neglected children and their families. There are many current initiatives to improve support for families,86 to identify early those children who may be most at risk for abuse,87 and to mobilize entire communities to take more responsibility for the problem of child abuse and neglect and more initiative in finding solutions to this problem.88

However, the focus of this journal is on the juvenile court. The court has a particularly important role to play in meeting the goals of Public Law 96-272. Three current policy and practice issues are: (1) the court's need for data, (2) the court's responsibility to ensure timely permanency decisions for children, and (3) the opportunity and need for judicial leadership on these issues.

 

  • Data. Juvenile courts, as well as child welfare agencies, need comprehensive data about their effectiveness in responding to child abuse and neglect cases. Currently, across the country, such data are missing at national, state, and local levels. For example, judges handling child abuse and neglect cases often do not know the answers to basic questions such as: What percentage of the children who are left in their homes after a report of abuse or neglect were subsequently abused? What percentage of children reunified with their families reentered the system? How long do children remain in foster care, and what is the number of placements? How long does the court process take? How many hearings are rescheduled and why? What percentage of children whose parents' parental rights have been terminated have been adopted and how quickly?

Such data are tools, not solutions, but they can show courts and child welfare agencies where improvements and reforms are needed. Indeed, with recent federal funding for state juvenile court needs assessments, over 33 state court systems have identified better information as a high-priority need.89 Separate federal funding is now providing incentives for states to build comprehensive, automated, child welfare data systems. These are important opportunities to make real progress toward documenting the effectiveness of a jurisdiction in responding to child abuse and neglect cases and how effective this response is.90

RECOMMENDATION

 

  • In each state and locale, every effort should be made to assess the data system needs of juvenile courts and child welfare agencies and to address these needs in a coordinated and complementary manner.

 

  • Commitment to Timely Decisions. Children need to grow up in safe and stable homes. It is harmful for them to grow up being moved in and out of the custody of their families and/or from one foster placement to the next.91 This is particularly true for very young children, whose physical, emotional, and cognitive development is so rapid and so critical.91 Two years pass quickly for an adult but are half of the lifetime of a four-year-old. The 1980 federal legislation was correct in affirming the importance of achieving safe, stable, and permanent placements for all children within at least 18 months. In addition, states should seriously consider more developmentally sensitive child welfare practices, with special attention to the needs of very young children.91

Timely decision making by courts and child welfare agencies is critical to meeting the developmental needs of children for safe and permanent homes. Although data are limited, a number of studies and specially created data archives have documented the difficulty of securing permanent placements for children in a reasonable period of time. As Barth discusses in his article, in Illinois, more than half of the children are in foster care for 35 months; in New York, for 25 months.83 This is true even for very young children. A recently conducted study in California shows that about two-thirds of the approximately 24,000 children entering foster care in any one year are children five years old and younger. From 25% to 40% of these children will remain in out-of-home care for at least four years, and at least 30% of these children will experience three or more foster care placements during that time.84

There is much a court can do to improve this situation. First, the strong commitment of each juvenile court judge to timely decision making is critical. The judge must play two roles. Next, the judge can prevent unnecessary delay by such strategies as implementing concurrent planning, handling a case from beginning to end, and setting strict rules regarding continuances. Such steps can yield great progress in resolving these cases in a timely manner.92,93

In addition to ensuring that its own processes are expeditious, the court also plays a very important role in monitoring and ensuring that child welfare agencies and others involved in these cases make decisions and meet their legal obligations (such as making reasonable efforts toward family reunification) in a timely manner. As the article by Hardin in this journal issue discusses, this monitoring role, created by Public Law 96-272, is not without controversy.94 Although there is consensus that, for highly sensitive decisions such as involuntarily removing children from their families or terminating parental rights, courts must be involved, there is controversy as to whether courts should review case plans of child welfare agencies and to what extent. This monitoring role continues to be critical, and the courts have made considerable progress in performing it. One of the main reasons for the court to play this role is the interrelated nature of court decisions and decisions of child welfare agencies. In a sense, the court performs an important managerial function. Court review is critical to identify gaps and dangers in selected service approaches, to emphasize statutory timelines, and to keep all parties working together.92

RECOMMENDATION

 

  • Every juvenile court in the country should work with local child welfare agencies to improve their effectiveness in providing abused and neglected children with safe and permanent homes in a timely manner as specified by law.

Some states have augmented such local efforts with legislation mandating or otherwise encouraging earlier permanency decisions, especially for young children. Colorado, for example, has adopted a new framework for child welfare decisions for children under the age of six. Except in very special circumstances, they must have a permanent placement within 12 months of out-of- home placement.95

 

  • Leadership. As noted above, the court plays a valuable role in ensuring the timeliness of its own proceedings, as well as the decision making of child welfare and other agencies. In addition, however, juvenile court judges are in a position to play a greater leadership role in the broader community. In communities across the country, individual judges have been catalysts for change. They have highlighted the importance of the problem of abuse and neglect, and have convened community agencies and interested parties in collaborative efforts to improve community-wide responses to the problem. Too often, policy and practice changes occur in the handling of abuse and neglect cases only in response to particularly disturbing incidents highlighted by media attention.96 Courts, given their stature and authority in communities, can help prevent this. As Judge Edwards has written, there is a public role for judges which includes being open to the public and working to ensure that the public understands the role and performance of courts and child welfare agencies in handling these reports. Sometimes, judges can also play important roles in helping to draft legislation that is necessary for the court to perform its work. In addition, a judge can take action to rally the community and help garner resources to ensure that there is actually a system of services in place for children and families who come before the court.49

RECOMMENDATION

 

  • Juvenile court judges should be educators and spokespersons in their communities on behalf of abused and neglected children. Judges should advocate for adequate court resources and community systems to respond promptly and appropriately to child abuse and neglect.