3

Current Practice in the Juvenile Justice System

Juvenile justice is a highly varied process that is shaped by law and driven by local practice. Youth coming into the justice system—usually after an arrest by law enforcement—are screened and assessed by various organizations and individuals. The charges against them are reviewed for legal sufficiency, and a formalized court process may be used to establish their culpable commission of a criminal act. If the case merits some type of intervention, other actors in the justice system attempt to match the youth with an appropriate and cost-effective program or sanction. The availability and suitability of an intervention often influences the outcome of earlier decisions.

As expressed in most state statutes and understood by participants, the goals of the process are to hold youth accountable, to satisfy the demands of due process, and to prevent crime, ideally by providing rehabilitative interventions in the most serious and high-risk cases while keeping costs to a minimum and avoiding the use of expensive interventions for low-risk youth and youth charged with less serious offenses. A wide variety of professionals, semiprofessionals, citizens, and volunteers participate in the juvenile justice process. Although all participants share a general commitment to the declared goals, they rely on their own professional perspectives and values in making decisions and recommending particular actions for individual cases. Law enforcement officers want to identify young offenders quickly and to ensure that every youth receives an effective and appropriate sanction for each offense. Prosecutors want the legal system to run efficiently and to protect the rights and feelings of crime victims while deterring future crime. Defense attorneys want their clients to be treated



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3 Current Practice in the Juvenile Justice System Juvenile justice is a highly varied process that is shaped by law and driven by local practice. Youth coming into the justice system—usually after an arrest by law enforcement—are screened and assessed by various organizations and individuals. The charges against them are reviewed for legal sufficiency, and a formalized court process may be used to establish their culpable commission of a criminal act. If the case merits some type of intervention, other actors in the justice system attempt to match the youth with an appropriate and cost-effective program or sanction. The availability and suitability of an intervention often influences the outcome of earlier decisions. As expressed in most state statutes and understood by participants, the goals of the process are to hold youth accountable, to satisfy the demands of due process, and to prevent crime, ideally by providing rehabilitative interventions in the most serious and high-risk cases while keeping costs to a minimum and avoiding the use of expensive interventions for low- risk youth and youth charged with less serious offenses. A wide variety of professionals, semiprofessionals, citizens, and volunteers participate in the juvenile justice process. Although all participants share a general commit- ment to the declared goals, they rely on their own professional perspec- tives and values in making decisions and recommending particular actions for individual cases. Law enforcement officers want to identify young offenders quickly and to ensure that every youth receives an effective and appropriate sanction for each offense. Prosecutors want the legal system to run efficiently and to protect the rights and feelings of crime victims while deterring future crime. Defense attorneys want their clients to be treated 49

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50 REFORMING JUVENILE JUSTICE fairly and for all youth meriting rehabilitation to receive services that will help them to stay out of trouble. The public wants the entire process to be cost-effective and their neighborhoods and homes to be safe. Balancing the varying perspectives and expectations of the people involved in the juvenile justice process can be difficult, contentious, and somewhat unpredictable. Young people charged with committing similar acts of delinquency may be handled quite differently, depending on the state or county in which they live, the characteristics of their families and neigh- borhoods, their sex, their race or ethnicity, their demeanor, their involve- ment with drugs and alcohol, any mental health issues involved, and the actual harm their behavior has inflicted on individuals or the community. Some youth are treated harshly and receive severe punishments, includ- ing long periods of confinement, and others are handled informally and even diverted from the process without any legal record of the encounter. The seriousness of the offense and the past record of the offender help to determine but do not ordinarily control the outcome. Many factors govern the path that an individual delinquency case takes through the justice pro- cess. The juvenile justice process is organizationally complex, value-driven, and often politicized. It does not necessarily involve careful and accurate assessments of needs or treatment. Thus, it is not possible to infer the dangerousness and harmfulness of a youth’s behavior solely on the basis of how that individual is handled in the juvenile justice system. There are too many other factors involved, some of which stem from the youth’s behavior, but others originate in bureaucracy, fiscal and political issues, and cultural definitions of social problems. This chapter aims to provide an overview of the practice of juvenile justice in the United States—that is, the patterns and variations that emerge in 50 states and the District of Columbia as well as those that characterize what is often a highly localized process. After describing the characteristics of youth (and charges) that can bring them within the jurisdiction of the juvenile court, the chapter provides an overview of juvenile justice adminis- tration and summarizes the aggregated decisions made at each stage of the process by police, intake officers, prosecutors, and judges. Having presented a portrait of juvenile justice, we return to the theme of complexity with which the chapter began. DEFINING JUVENILE DELINQUENCY The juvenile justice system is the combined effect of decisions and actions taken by the police, the courts, and a wide variety of human ser- vices agencies as they respond to incidents of juvenile delinquency. What is a “juvenile”? The answer varies from place to place and from case to case. What is “delinquency”? Some illegal behaviors by underage minors are

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 51 considered to be acts of delinquency; some are not. How does one define the system that responds to cases of delinquency? Do youth have to be arrested to have contact with the system? Must they be formally charged, adjudicated, or placed in a program to be in the system? Discussions about juvenile justice policy and practice are confusing if these elements are not clear. In short, it must be remembered that juvenile delinquency (i.e., conduct for which a juvenile is subject to a delinquency adjudication) is a legally defined concept that varies substantially from state to state. (See the “Terminology” section in Chapter 1 for the committee’s definitions.) Most people would say that a juvenile delinquent is a badly behaved teenager under age 18 who gets into trouble frequently—or, more precisely, one who gets into trouble with police frequently. The image that comes to mind is an adolescent who skips school, drinks alcohol, uses illegal drugs, steals, is often belligerent, and may be prone to violence. This popular notion of delinquency, however, is not an adequate definition for a dis- cussion of juvenile justice practice and policy. It is far too broad. Not all misbehaving teenagers under age 18 are subject to the jurisdiction of the juvenile court. Even when they are legally defined as a minor (or juvenile), not all of their law violations are defined as acts of “juvenile delinquency.” A law violation by a young person is considered an act of juvenile delin- quency only if the behavior meets all three of the following criteria: (1) the act involved would be a criminal offense if it were committed by an adult; (2) the young person charged with committing the act is below the age at which the criminal court traditionally assumes jurisdiction; and (3) the juvenile is charged with an offense that must be adjudicated in the juvenile court (or some other court with jurisdiction over noncriminal but illegal acts of juveniles) or the prosecution and the juvenile court judge exercise their discretion to lodge and retain jurisdiction in the juvenile court. In all states, the legal status of a young person charged with an ille- gal act is largely determined by the person’s age, but the exact definitions are governed by state law. Most states consider people to be adults for the purposes of criminal prosecution as of their 18th birthday, but some jurisdictions use the 17th birthday as the cutoff (e.g., Georgia, Louisiana, Massachusetts, Michigan, Missouri, and Texas) and a few prefer the 16th birthday (e.g., New York and North Carolina). States periodically revisit these age boundaries (Office of Juvenile Justice and Delinquency Preven- tion, 2011c). Since the mid-1990s, the legislatures of Connecticut, Illinois, New Hampshire, and Wisconsin, all redefined the original jurisdiction of their juvenile courts, either raising the boundary for entire age groups (Connecticut, New Hampshire, and Wisconsin) or raising it for certain classes of offenses (Illinois). Whatever age is specified by state law as the upper limit of original juvenile jurisdiction, young people who commit offenses after that age are automatically under the jurisdiction of the crimi-

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52 REFORMING JUVENILE JUSTICE nal (adult) court. Whatever happens to them as a result of being arrested is outside the scope of the juvenile justice system. States may also set a lower boundary for the age of original juvenile court jurisdiction (Snyder and Sickmund, 2006). Children below the specified age do not fall under the jurisdiction of the juvenile court when they commit delinquent acts. Such matters are referred instead to a child welfare or social services agency. In Pennsylvania, for example, children below age 10 are not brought into juvenile court for delinquent charges. Youth under age 10 are juveniles in the legal sense but their law violations are not defined as delinquency. North Carolina sets a lower age limit of 6 years, and Maryland, Massachusetts, and New York, set it at age 7. A total of 34 states and the District of Columbia have no statutory age limit for when children may face delin- quency charges in juvenile court, but it is often assumed, based on common law principles, that the minimum age for juvenile court jurisdiction in these states is age 7. Youth may also be subject to juvenile court jurisdiction for behaviors that would not be considered illegal for adults. Generally these are called “status offenses”—not acts of delinquency—because they apply only to persons whose legal status is that of a juvenile. The most common status offenses are running away from home, refusing to attend school (truancy), violating curfew ordinances, and refusing to obey parents, teachers, or other lawful authorities (incorrigibility). Other common status offenses are underage drinking of alcoholic beverages or smoking tobacco and engaging in underage, consensual sexual activities. Not all jurisdictions use the term “status offense.” Some states refer to these youth simply as “nonoffenders.” Other states use names that imply that a young person has not been charged with criminal violations but may be still subject to court intervention—such as “children in need of supervision” or “persons in need of supervision.” The last, and essential, criterion for defining a young person’s illegal behavior as an act of delinquency is that the case remains under the delin- quency jurisdiction of a court empowered to handle delinquent matters. Every state has some form of “transfer” law that removes particular youth or particular cases from the delinquency jurisdiction of the juvenile court, placing them under the criminal jurisdiction of another court (see Box 3-1). State laws define the scope of these transfer provisions differently, using various combinations of age, offense, and prior record (Griffin et al., 2011). In most states, youth may be transferred by order of a juvenile court judge who “waives” the juvenile court’s jurisdiction and allows the case to be tried in criminal court. In some states, however, it is not necessary to obtain the consent of a judge. Youth may be transferred by prosecutors on an indi- vidual basis or by a preemptive act of the legislature, known as “statutory exclusion” or “automatic transfer.” For example, a 15-year-old who steals something of value will typically be charged with an act of delinquency

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 53 BOX 3-1 Mechanisms Used to Transfer Youth Out of the Juvenile Justice System Judicial Waiver. The most commonly available method of sending ju- veniles to criminal court (i.e., used by the most states). Juvenile court judges can decide to waive their jurisdiction over a particular case and transfer it instead to the adult court. This is also referred to as a discre- tionary waiver. Legislative Exclusion. The most frequently used method of transfer (i.e., affects the most youth). State legislators pass a law requiring all youth charged with certain offenses to be prosecuted in criminal court even if they are below the age of criminal court jurisdiction. Sometimes it is called “automatic transfer.” Prosecutor Discretion. The second most frequently used method of sending youth to adult court. State law gives prosecutors the authority to decide whether to send certain youthful offenders to juvenile court or to criminal court. Also known as “concurrent jurisdiction” because certain cases (those involving serious offenses committed by youth at least age 14, age 15, etc.) start out under the jurisdiction of both courts, adult and juvenile. akin to theft or burglary and the matter will be handled in juvenile court. A 15-year-old who steals using a threat of force, however, may be charged with robbery and in some states that offense will fall automatically under the jurisdiction of the criminal court, depending on the youth’s age at the time of the offense. In such a state, a youth charged with robbery after the cutoff age immediately loses the protection of his or her juvenile status. THE JUVENILE JUSTICE PROCESS Each state, county, and sometimes each city creates its own processes for responding to delinquent youth. Law violations by young people may be handled by probate courts, juvenile divisions of a circuit court, or even comprehensive family courts. In every community, some form of court is charged with responding to cases in which a person under the age of adult- hood (a juvenile) is suspected of breaking the law. Because these courts have jurisdiction over juveniles and they follow the same general principles of juvenile law, it is conventional to refer to them simply as juvenile courts.

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54 REFORMING JUVENILE JUSTICE But they are far from standardized. Many juvenile courts handle other types of cases. They often handle dependency cases (or matters involving abused and neglected children) and youth charged with noncriminal acts (i.e., status offenses). Other juvenile courts (especially family courts) handle domestic violence and child custody matters (Butts, 2002). As the juvenile court concept spread across the United States in the early 20th century, lawmakers invented a variety of structures for the new courts in order to incorporate juvenile court ideals into existing procedures and policies (Watkins, 1998). Frequently, the court responsible for handling young people accused of law violations is a division of the trial court with general jurisdiction (Butts, 2002). However, some states and localities have created a separate juvenile court that is also a court of general jurisdiction. Other states operate juvenile courts within a single, statewide structure of limited jurisdiction courts. Certain processing steps, of course, are common to most juvenile jus- tice systems, regardless of terminology, the configuration of the court, or the allocation of service delivery responsibilities. These include intake screening, filing a formal petition, adjudication, and disposition (National Research Council, 2001a). Several kinds of hearings occur during these stages. They include the detention hearing, the waiver or fitness hearing, the adjudicatory hearing, the dispositional hearing, and the postdisposition review. Hearings to review the youth’s violation of the court-approved plan (Binder et al., 1997; National Council of Juvenile and Family Court Judges, 2005) are also held. Juvenile Court Administration Intake Screening and Petition Before any court processes come into play, a juvenile must be referred to the court. Referral can be made by the police, parents, schools, social ser- vice agencies, probation officer, or victims. Generally police are the primary referring agents, but, in approximately 20 percent of the arrests, referral will come from a source other than the police (Snyder and Sickmund, 2006). Police affidavits explaining the alleged facts and circumstances are filed with the juvenile court, and at this stage the juvenile court process is said to begin. The affidavit is then forwarded to the prosecutor or handled by juvenile court intake, most commonly the probation department. The legal sufficiency of the case is determined during this first stage as well as whether the case is better resolved informally through diversion to a program or a specified set of conditions without formal adjudication (National Research Council, 2001a). A decision is also made whether to continue detention for those youth brought into custody. Unlike adults, juveniles do not have

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 55 a constitutional right to bail but instead may be released to parents or a guardian. Virtually all cases that are handled by the juvenile courts have contact with a probation officer. Probation departments are generally responsible for screening cases, making detention decisions on some of them, preparing investigative reports on most of them, providing supervision to more than a third of all cases processed by the juvenile court, and delivering aftercare services to many youth released from out-of-home placement. Youth may be assigned to the probation department at the front end as a pretrial alternative to formal adjudication or as an alternative to detention. ­ sually, U the pretrial alternative is offered only to first-time low-risk offenders. As described below, not all probation departments execute all of the intake functions (Torbet et al., 1996). The detention decision is reviewed by a judge in a detention hearing. This hearing is also referred to as an arraignment, initial hearing, pretrial hearing, probable cause hearing, or plea hearing. Numerous issues may be handled: appointment of counsel, the youth’s admission or denial of allega- tions, a determination of the youth’s detention status or condition of release pending trial, and a determination of the need for additional services. The judge determines whether the youth is competent to stand trial (which may lead to a separate hearing), reviews the youth’s due process rights, and addresses the youth’s right to a jury trial if one is available under state law. Unlike adults, youth in juvenile court do not have a constitutional right to a jury trial,1 although 20 states do provide them as either an absolute right or a right under limited special circumstances (Szymanski, 2008). Options available to the court at this first stage include dismissal, unofficial handling by the court that may include informal or voluntary probation without fil- ing a petition, or initiating the formal process by filing a petition (Binder et al., 1997). Some youth will voluntarily agree to probation (known as voluntary probation) with the understanding that if they successfully complete their probationary period (usually 3-6 months), their case will be terminated without any formal processing. A petition may be filed if the factual allegations provide a legally suf- ficient basis for prosecution and no adequate alternative responses to the youth’s behavior are available outside the juvenile justice system. Whereas prosecutors focus on the legal sufficiency, the role of an intake officer is usu- ally broader—to determine whether the youth is a risk to himself or herself, to determine whether he or she should be detained, and to make recom- mendations whether the case should be handled formally (filing a petition) or informally. In many jurisdictions, the petition will be filed by the court intake officer (or probation officer) (Snyder and Sickmund, 2006), and the 1  McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

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56 REFORMING JUVENILE JUSTICE prosecutor’s role will be limited to reviewing cases petitioned by the intake officer. In other jurisdictions, the prosecutor will review all police referrals and take complete responsibility for court intake screening. Regardless of the roles of court intake or the prosecutor, front-end juvenile processing decisions, because of the discretion they involve, have an enormous impact on court operations and how youth are handled. However, no national inventory exists of these arrangements or intake practices (Mears, 2012). Prior to making a determination to proceed to adjudication, the court may also schedule a waiver or fitness hearing prior to proceeding to or in lieu of an adjudicatory hearing if the prosecutor has filed a motion asking the court to waive juvenile court jurisdiction and transfer the youth to the criminal court. Whether transfer is mandatory or discretionary under the terms of state law, the court must determine whether there is probable cause to believe the youth has committed the alleged offense. If the court finds probable cause, a second decision involves whether the court will retain jurisdiction or transfer the case. Unless transfer is mandatory, the court’s decision will depend on the statutory criteria, which vary widely from state to state. Typically, the state bears the burden of proving that the criteria are met, but a youth can contest the waiver motion by challenging or producing evidence. If the waiver is presumptive under the statute upon proof of prob- able cause and previous delinquency, the burden of proof may shift to the youth to prove that he or she is amenable to treatment in the juvenile justice system (National Council of Juvenile and Family Court Judges, 2005). Adjudication and Disposition The adjudicatory hearing is similar to a trial in criminal court. All youth have a constitutional right to counsel at the adjudicatory stage (In re Gault, 1967). Gault also established the rights to a speedy trial, timely notice, cross-examination of witnesses, and to remain silent at adjudica- tory hearings when there is a possibility of incarceration (Binder et al., 1997) (see Chapters 2 and 7). According to the model court guidelines of the National Council of Juvenile and Family Court Judges (2005), the youth’s counsel has responsibility for investigating all circumstances behind the allegations, seeking discovery for all court documents, appointing an investigator, and informing the youth and his family about the nature of the proceedings and the consequences. The guidelines also propose that state- ments of a juvenile made during court intake or during the detention hear- ing should not be admissible at trial. The state is required to prove every element of the allegation beyond a reasonable doubt. Finally, the guidelines also note the importance of juvenile delinquency courts’ rendering timely decisions and the avoidance of continuances (National Council of Juvenile and Family Court Judges, 2005).

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 57 The adjudicatory hearing may result in the youth being found to have committed the delinquent act (and equivalent to a finding of guilt and a conviction in a criminal trial), in which case a disposition hearing will be scheduled. The youth is now considered an “adjudicated delinquent.” The youth may be found not guilty and the case dismissed, or the case may be continued in contemplation of dismissal. The latter may occur if the judge orders the youth to undertake some kind of action prior to the final decision being made (National Research Council, 2001a). Similar to criminal courts, plea agreements between the prosecutor and the youth’s counsel may also occur during the adjudicatory phase. The dispositional hearing is similar to the sentencing hearing in the criminal court. Some states allow a dispositional hearing immediately after the adjudicatory hearing if the youth admits to the offense, but usually time is required to complete a social history or receive evidence. In several states, there are time limits to the period between the adjudication and disposition phases (Binder et al., 1997). Unlike the adjudicatory hearing, virtually any information that bears on the youth’s life, family, schooling, etc., is admissible. A judge can decide on probation, placement in a foster home, institu- tionalization, or some other alternative for the youth, such as referral to a treatment program, imposition of a fine, community service, victim-offender mediation, or restitution. Probation is the most common disposition for youth who receive a juvenile court sanction (Snyder and Sickmund, 1999). Finally, during the period the youth is under the court’s jurisdiction, the judge may require a postdisposition hearing or review to determine if the youth, parent, and/or legal guardian is following the court’s orders and services are being provided. However, for many youth, counsel are not often involved in the postdisposition stage and as a result are not avail- able to advise on many important postdisposition matters (see Chapter 7). Youth who commit technical violations of the court-approved plan (not new alleged delinquent acts) will be handled in the same manner as a new delinquency petition alleging a misdemeanor or felony (National Council of Juvenile and Family Court Judges, 2005). The Impact of Due Process Requirements A full and accurate description of juvenile court administration is incomplete without addressing the impact of the due process require- ments mandated by various decisions of the Supreme Court in the 1960s and 1970s. These decisions2 are discussed in Chapter 2. Among the pro- 2  Kent v. United States, 383 U.S. 541 (1966); In re Gault, 387 U.S. 1 (1967); In re Winship, 397 U.S. 358 (1970); Breed v. Jones, 421 U.S. 519 (1975).

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58 REFORMING JUVENILE JUSTICE cedural safeguards these decisions established are the right against self-­ incrimination, the right to counsel, the right to timely notice of allegations, the right to confront and cross-examine witnesses, a prohibition against double jeopardy, and a requirement of proof beyond a reasonable doubt in adjudicatory hearings. Other due process requirements, such as right to bail and the right to trial by jury found in criminal courts, were not mandated for the juvenile court. Although the states incorporated due process requirements into their state codes, it is difficult to generalize about the extent of their implementa- tion given the diverse practices of juvenile courts. Little research exists on the contemporary juvenile court more generally or on the philosophies and practices of those who administer and work in it (Bishop, 2006; Tanenhaus, 2012). Scholars who have studied juvenile courts typically describe the gap between the intent of due process requirements (the ideal) and actual practice (Feld, 1991, 2012; Binder, 1997; Mears, 2012). Mears, in particu- lar, concludes that genuine due process probably constitutes the exception rather than the norm (2012, p. 600). Feld takes a somewhat different tack, arguing that the current due process rights are inadequate to begin with and additional procedural safeguards are needed to protect youth from their immaturity and vulnerability (2012). This gap is reflected in findings relating to access to counsel (e.g., barriers to appointed counsel, frequency of waiver of counsel) and the effectiveness of counsel (e.g., high caseloads, public defender staff turnover, inexperience). Almost three decades after Gault, a national survey of the defense bar (Puritz et al., 1995) showed that more than a third of public defender offices reported some youth waiving their right to counsel at the detention hearing. They also reported enormous caseloads of more than 500 cases a year and large turnovers of staff, with 55 percent of public defenders staying less than 24 months. More recently, state-by-state assess- ments conducted during 2001 and 2007 reflect large numbers of youth waiving counsel, failing to have counsel appointed, or not availing them- selves of counsel early in the process. Other state findings reflect inadequate legal representation, with states reporting limited contact with juvenile clients, failure to perform necessary background investigations, and a lack of training (Mlyniec, 2008). These findings have implications for whether fairness is being achieved but also whether the process is being perceived as fair by youth and their families. See Chapter 7 for more detail on the status of defense representation. Despite the change from the traditional rehabilitation model to a more adversarial one with its due process requirements, the juvenile court retains broad powers over those who come under its jurisdiction (Tanenhaus, 2012). Court intake officers, in particular, continue to exercise enormous discretion and make decisions that can “affect case flows, the frequency

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 59 and manner in which detention is used, the amount of informal and formal sanctioning that occurs, the use of various services and treatments, and dif- ferences in how different groups (e.g., males versus females, minorities, the mentally ill) are processed” (Mears, 2012, p. 593). Having defense counsel can serve as a check against decisions that are unfounded or not in the best interest of the youth (National Council of Juvenile and Family Court Judges, 2005), and all 50 states provide some statutory right to counsel for youth accused of delinquency in the juvenile justice system. Nonetheless, access to counsel and the quality of legal representation for youth appear to be uneven and haphazard (Puritz et al., 1995; Mlyniec, 2008) in many jurisdictions. Finally, most juvenile courts allow young offenders to waive those rights; others have been noted for their aggressiveness in encouraging waivers (Binder et al., 1997). Juvenile Crimes Not Handled by the Justice System Analyzing the operations of juvenile justice systems is not the same as analyzing juvenile crime itself. The workloads of law enforcement agencies and courts are partly the result of the scale and intensity of illegal activ- ity by youth, and partly a function of how likely it is that citizens report crimes and how likely it is that police and courts decide to intervene. The likelihood that any particular youth will be arrested and referred to court depends on the amount of personnel and resources available to the police and the court system, as well as the effect of each agency’s policies and practices about the appropriate response to juvenile offending. The com- bined effect of these factors can be profound. The odds of a particular crime being reported vary, and the odds of that report resulting in an arrest and that arrest resulting in a referral to the justice system also vary. In the end, the youth processed by the juvenile justice system are merely a sample of all young people involved in illegal behavior. The “sampling” effect of the juvenile justice system is clear when offi- cial data are compared with self-reported data. Self-reported delinquency data (obtained from youth directly) suggest that half of all 15-year-old youth may have done something in the previous year that could have resulted in their arrest. According to the annual Monitoring the Future surveys administered by the Institute for Social Research at the University of Michigan, 27 percent of all tenth graders (or 15-year-olds) report hav- ing used an illegal drug in the previous 12 months (Johnston et al., 2012). According to the U.S. Census Bureau, in 2008, the resident population of 15-year-olds in the United States was approximately 4.2 million. If 27 percent of these youth used illegal drugs, this would suggest that the pool of violators among 15-year-olds could be as high as 1.1 million each year. According to Federal Bureau of Investigation (FBI) data, however,

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78 REFORMING JUVENILE JUSTICE TABLE 3-6  Handling of Delinquency Cases by Offense and by Race, 2008 American White Black Indian* Asian** Delinquency Cases in 2008 Total Cases 1,043,600 563,500 23,500 22,700 Person offenses 226,400 167,100 5,200 4,500 Property offenses 405,900 191,200 9,400 10,200 Drug law violations 131,200 43,500 2,700 2,000 Public order offenses 280,100 161,600 6,200 6,000 Petitioned Cases as Percentage of Total Cases All delinquency cases 53 61 61 58 Person offenses 55 64 61 64 Property offenses 51 57 59 51 Drug law violations 54 70 58 57 Public order offenses 55 59 68 66 Adjudicated Cases as Percentage of Petitioned Cases All delinquency cases 63 57 70 61 Person offenses 61 55 69 63 Property offenses 63 56 69 57 Drug law violations 64 59 70 60 Public order offenses 65 59 72 65 Cases Placed Out-of-Home as Percentage of Adjudicated Cases All delinquency cases 26 32 31 25 Person offenses 29 34 35 31 Property offenses 25 30 32 24 Drug law violations 19 35 24 27 Public order offenses 29 30 31 23 NOTE: Detail may not add to totals due to rounding. *Includes Alaskan Native. **Includes Native Hawaiian and Other Pacific Islanders. SOURCES: Sickmund, Sladky, and Kang (2011). Easy Access to Juvenile Court Statistics: 1985-2008. Online. Available: http://www.ojjdp.gov/ojstatbb/ezajcs/. Data source: National Center for Juvenile Justice (2011). National Juvenile Court Data Archive: Juvenile court case records 1985-2008 [machine-readable data files]. Pittsburgh, PA: NCJJ [producer]. vision for each youth held responsible for an offense. The juvenile justice system is the people and organizations that move young offenders through the legal process, including judges, prosecutors, defense attorneys, court administrators, court intake workers, counselors, and probation officers. It is the institutions and organizations that sometimes hold and house juve- niles, such as juvenile detention centers, juvenile correctional facilities and training schools, residential treatment centers, foster homes, group homes, and drug treatment and mental health facilities. Depending on each indi- vidual case, the system that responds to the illegal behaviors of juveniles

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 79 TABLE 3-7  Likelihood of Detention in Cases by Offense, Gender, Race, and Age (in percentage) 1985 2000 2008 Person offenses 25 25 27 Property offenses 18 17 17 Drug offenses 22 22 18 Public order offenses 29 25 23 Male youth 22 23 23 Female youth 18 17 16 White youth 19 19 19 Black youth 27 28 25 Youth of other races 26 21 22 Youth age 15 and younger 20 20 20 Youth age 16 and older 23 23 22 Total delinquency cases 21 21 21 SOURCES: Sickmund, Sladky, and Kang (2011). Easy Access to Juvenile Court Statistics: 1985-2008. Online. Available: http://www.ojjdp.gov/ojstatbb/ezajcs/. Data source: National Center for Juvenile Justice (2011). National Juvenile Court Data Archive: Juvenile court case records 1985-2008 [machine-readable data files]. Pittsburgh, PA: NCJJ [producer]. may also include a variety of diversion programs that are nonresidential and voluntary and provide informal services and supports, such as social services, housing assistance, education, health care, and occupational or vocational training. Nonetheless, the juvenile justice system is not synonymous with social welfare in general. The juvenile justice system may draw on the resources and expertise of many partners from the broader social welfare sector, but it does so when youth have been brought to the attention of justice authorities due to acts of delinquency, whether or not those acts resulted in arrest or formal prosecution, and whether the justice system learns of the delinquency from law enforcement or from education and child welfare authorities. As outlined in Chapter 1, the goal of juvenile justice interven- tion, in responding to acts of delinquency, is to hold youth accountable for their illegal behavior and to deliver treatments and services that will address the causes of this misbehavior and will facilitate positive and healthy ado- lescent development to prevent the youth from becoming involved in the justice system again. The administration of juvenile justice in the United States reflects con- tinuing ambivalence about the goals of the system and the differences in perspective of the various participants and decision makers. These tensions

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80 REFORMING JUVENILE JUSTICE are evident not only in the disagreements that can arise in individual cases but also at a structural level. Over time, variations in juvenile justice have generated subsystems. The term “subsystem” suggests a hierarchy of deci- sion making, and such a hierarchy often exists by design (Weick, 2001). In this hierarchical juvenile justice system, the judge may render the ultimate decision about the status of an individual juvenile, but many decisions affecting the final outcome are made before the judge has even reviewed the case (Hagan, 1975). The preferences and actions of police, intake, and probation officials as well as social workers and prosecutors determine the delinquent status of individual offenders prior to judicial review (Feeley and Lazerson, 1983). The perceptions and values of each official are likely to be affected by public opinion, although the views of the American public have not always been clear (Cullen, Golden, and Cullen, 1983). Surveys find consistent evidence that the public supports the preventive and reha- bilitative mission of the juvenile system (Nagin et al., 2006; Mears et al., 2007; Piquero et al., 2010). Yet the same public elected those officials who largely criminalized juvenile justice in recent decades, especially for youth charged with relatively serious offenses (Feld, 1984; Bishop et al., 1996). The criminalization of juvenile justice may not have eliminated the public’s support for treatment and rehabilitation, but it created more complexity in how justice officials balance rehabilitation with sanctions, or how they determine whether youth are delinquents who need treatment or criminals who deserve punishment (Singer, 1996). Today’s highly complex version of juvenile justice is certainly not the one envisioned by reformers at the beginning of the 20th century (Mack, 1909; Levine and Levine, 1992). The Progressive Era reformers who created the juvenile court believed that it should be the only court with jurisdiction over youth below the age of criminal responsibility (Tanenhaus, 2004). In the contemporary juvenile justice system, the legal status of individual juveniles is determined in more than one organizational setting and by a range of individual actors who may decide to initiate or transfer the case to criminal court. Even within the juvenile court, various subsystems and even separate, specialized courts or dockets have emerged as alternative arenas for deciding the most appropriate services and sanctions for youth (Butts, Roman, and Lynn-Whaley, 2012). Drug courts, gun courts, teen courts, and mental health courts were organized within the juvenile jus- tice system because they were seen as better able to focus on each youth’s circumstances and to provide more treatment options. Juveniles who fail in these diversionary courts often find themselves back in juvenile court. As a consequence, the juvenile court in the 21st century is less of a true diversionary court and more of a unit within the larger justice system from which some juveniles are now diverted for differential processing. The growing complexity of juvenile justice makes the system more

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 81 difficult to comprehend. Traditionally, much of the system was hidden from public view. The lack of transparency was often required by state confidentiality laws designed to protect adolescents from the stigma of a delinquent label. In practice, of course, the veil of confidentiality also protected juvenile justice officials from the effects and implications of their decision making. Recently states have relaxed these confidentiality laws (Sanborn, 1998) for a number of reasons, including a desire to increase the collateral consequences of a juvenile adjudication (Feld, 2012); to hold youth accountable for public scrutiny, contrary to the founders’ intent; and to ensure public safety by putting the public on notice about the risk of harm (e.g., schools, public housing authorities, victims) (National Research Council and Institute of Medicine, 2001). Yet the system’s complexity con- tinues to make it difficult to understand and improve system functioning. The availability of justice data is even more contentious today due to advances in information technology. The broader availability of automation allows organizations to share client data instantly and in greater detail, but the laws governing privacy and confidentiality remain a complex patch- work that creates barriers to collaboration and efficiency. Juvenile court records follow young adults into criminal court in many states. By allowing criminal court judges to consider a defendant’s prior juvenile court record at the time of sentencing, states have altered the terms of the historical agreement that created the juvenile justice system in the first place. Under the traditional juvenile court model, less formal procedures were coupled with nonstigmatizing and nonpermanent dispositions. By the 1990s, poli- cies that permitted juvenile court records to enhance the severity of crimi- nal court sentences essentially revoked this arrangement (Sanborn, 1998). Adult defendants could be punished more severely, including receiving longer prison sentences, as a direct result of previous juvenile adjudications. All 50 states and the District of Columbia have statutes, court rules, or case law allowing this practice. Each subsystem in juvenile justice embraces different reasons for adju- dicating and sanctioning individual adolescents. Psychologists and mental health providers may advise the court that a youth’s delinquent behavior is a function of mental or emotional troubles or a history of trauma and abuse. Prosecutors may have little use for this kind of assessment and instead present a narrative based on rational choice and the need for pun- ishment. Jacobs observed that juvenile justice systems routinely overcharge some youth to justify needed treatment (Jacobs, 1990). A less serious offense may be handled severely because an offender’s drug use is thought to require intervention, just as medical systems may alter their character- ization of a patient’s illness to conform to the requirements of insurance coverage. Representatives of other subsystems may view the resources of the justice system as a respite from their own overtaxed agencies. Teachers

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82 REFORMING JUVENILE JUSTICE may view a referral to the juvenile justice system as an effective alternative for a disruptive student. Child welfare officials may welcome the interven- tion of the juvenile justice system when resources for older youth in foster care and group homes become strained. Schools and the Justice System For the most part, school disciplinary practices have traditionally had only a tangential relation to juvenile justice. However, over the past two decades, as a by-product of school zero-tolerance policies, discussed further in Chapter 4, schools appear to have lowered their threshold for misbehav- ing students (Wald and Losen, 2003; Kim, Losen, and Hewitt, 2010). Also, many school districts have opted to have a law enforcement presence on school campuses, either through school resource officers for whom districts contract with local policing agencies or through in-house school district police departments overseen by superintendents. Several states have seen a rise in school-based arrests as a result. For example, in Pennsylvania, the number of school-based arrests nearly tripled from 4,563 in 1999-2000 to 12,918 in 2006-2007; in North Carolina, there were 16,499 delinquency referrals to juvenile court directly from schools in 2008-2009 (Advance- ment Project, 2010). However, for many states and on a national level, the data are such that untangling arrests made on school grounds from overall police arrests is difficult. In a recent study of school discipline in Texas (Fabelo et al., 2011), researchers found it difficult to take stock of tickets issued and arrests made on school campuses because school district police are not required to report such data to the Texas Education Agency (Texas Appleseed, 2011). As such, school-based arrests are counted as any other juvenile arrest. Even if one cannot identify the number of school-based arrests from nonschool-based ones, the same Texas study identified large numbers of students with repeated disciplinary actions, ending up in the juvenile justice system (Fabelo et al., 2011). The Texas study is highlighted here because it is a recent, large-scale, longitudinal look at school discipline, and its findings mirror other analyses (Puzzanchera, Adams, and Sickmund, 2011; Saunders, 2011). This study examined student records over the course of at least six years for every stu- dent in the Texas school system who was in seventh grade in 2000, 2001, or 2002, a total of 928,940 records (Fabelo et al., 2011). The researchers sought “to investigate whether students’ involvement in the school disci- plinary system could predict subsequent juvenile justice contact” (Fabelo et al., 2011, p. 64). They found that more than one in seven students had contact during their middle or high school years. They found that the like- lihood of contact with the juvenile justice system increased with repeated

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 83 discretionary disciplinary actions6 by schools. The Texas study (Fabelo et al., 2011) also added to the research on the disproportionate impact on black and Hispanic students (see Chapters 4 and 8). It confirmed the extent of disparities for black, Hispanic, and white youth on such issues as juvenile justice involvement, specific disciplinary actions, use of discretion, and minority students with disabilities. Children’s Services and the Justice System Many children involved in the child welfare system later come to the attention of the juvenile justice system as adolescents. These youth are known as “crossover youth,” a term most commonly applied to those who have experienced maltreatment and engaged in delinquency.7 Crossover youth are of particular interest in understanding the juvenile justice process because youth from the same families and the same neighborhoods are often at higher risk of involvement in both systems, and because the link between child maltreatment and subsequent delinquency is well documented. Chil- dren who experience abuse and neglect are not predestined to become youthful offenders, but the odds are greater. One longitudinal study found that maltreated youth were more likely than their nonabused counterparts to be arrested as juveniles (27 versus 17 percent), to be younger at the time of their first arrest (average age 16.5 versus 17.3), and to be arrested for a violent crime at some point in the future (18 versus 14 percent) (Widom and Maxfield, 2001). Furthermore, abused or neglected children are likely to have more complex and varied service needs, and the fact that they are often simultaneously involved in both the child welfare and the juvenile justice sys- tems complicates the capacity of either system to deal with them effectively (Wiig, Widom, and Tuell, 2003). Crossover youth are also of particular concern because, like youth with mental health disorders and substance abuse problems, they are more likely to be treated harshly within the juve- nile justice system and their numbers tend to accumulate proportionately as delinquency cases move deeper into the system (Wasserman et al., 2010). There are several ways that youth become involved with both the child welfare and the juvenile justice systems. The most common way is for a youth to commit a delinquent offense while under the care and custody of child protective services, most often through the dependency jurisdiction of the juvenile or family court. A second way is for youth to be adjudicated 6  Discretionary disciplinary actions are those suspensions, expulsions, and out-of-school placements made at the discretion of the administrator usually for violations of student codes of conduct as opposed to mandatory violations listed in statute that require student removal from classroom. 7  This section relies heavily on the research summary by Herz and Ryan (2008a) and Herz et al. (2012).

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84 REFORMING JUVENILE JUSTICE for delinquency at some point after a period of involvement in the child welfare system. Another pathway is followed by youth who are victims of maltreatment, but without any contact with child welfare, enter the juvenile delinquency system and then are referred by probation authorities to child protective services. Finally, there are youth who exit the juvenile justice system and enter the child welfare system because of an absence of a guardian or parent. Researchers have sometimes followed these crossover youth as they navigated the juvenile justice system. In one study, youth with child welfare involvement were much more likely to penetrate further into the juvenile justice system. The researchers followed youth in Arizona’s juvenile justice system and found that only 1 percent of all informal diversion cases were dual jurisdiction youth (i.e., involved in both the child welfare and the delinquency systems), compared with 7 percent of probation supervision cases and 42 percent of cases placed in private group homes or residential treatment facilities (Halemba et al., 2004). Other studies show that cross- over youth are perceived as higher risk by juvenile justice decision makers and receive harsher dispositions than their noncrossover counterparts (Herz and Ryan, 2008a; Herz, Ryan, and Bilchik, 2010), that detention is used more often for youth with prior foster care episodes, and that crossover youth are less like to receive probation dispositions (Ryan et al., 2007) and more likely to receive out-of-home placements (Conger and Ross, 2001; Ross and Conger, 2009). See Chapter 8 for a discussion of racial/ethnic disparities among crossover youth. Mental Health Disorders and the Justice System Youth held in juvenile detention centers and other residential facilities exhibit high rates of mental health problems (Teplin et al., 2002; Cauffman and Grisso, 2005; Shufelt and Cocozza, 2006; Illinois Models for Change Behavioral Assessment Team, 2010). Approximately 65 to 70 percent have at least one diagnosable mental health disorder, and more than 60 percent of the youth met criteria for three or more diagnoses.8 It also appears that the prevalence of mental disorders among juvenile offenders is approxi- mately 40 to 60 percent higher than the prevalence of mental disorders among community samples of adolescents (approximately 17-22 percent) (Cauffman and Grisso, 2005). 8  Youth with a diagnosable mental health disorder are those that meet the formal criteria in the Diagnostic and Statistical Manual of Mental Disorders: Fourth Edition (DSM-IV 1994), such as psychotic, learning, conduct, and substance abuse disorders. Youth with schizophrenia, major depression, and bipolar disorder are classified as having serious mental disorders (Cocozza and Skowyra, 2000).

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 85 The failure of states to provide adequate mental health services for youth may have contributed to these high numbers. During the 1990s, many states closed their residential facilities for youth and cut back on community-based treatment services. The result was that parents began to seek help for their children from the juvenile justice system (Grisso, 2006, 2008; Skowyra and Cocozza, 2006). In some cases, youth were brought to detention centers in lieu of a psychiatric emergency room, or parents had their children arrested in order to obtain the medical services they needed (Grisso, 2006). A congressional report found that, in 33 states, detained youth with mental health needs were being held in detention with no charges but were awaiting mental health services (Waxman and Collins, 2004). A recent survey of all youth in residential commitment programs confirmed the high prevalence of mental health problems (Sedlak and ­McPherson, 2010).9 Among committed youth in all types of juvenile facili- ties, more than 60 percent of youth included in the survey had anger man- agement issues. Half exhibited elevated symptoms for anxiety and half for depression as well. More than two-thirds reported serious substance abuse problems, and 59 percent said that they had been getting drunk or high several times per week (or daily) in the months leading up to their arrest (Sedlak and McPherson, 2010a). For many youth, their mental health needs will remain unmet (Skowyra and Cocozza, 2006; Mendel, 2009). The survey also found that more than half of the survey youth were held in facilities that do not conduct mental health assessments for all residents and that two of five youth in these facilities had not received any mental health counseling (Sedlak and McPherson, 2010b). DIFFERENCES IN POLICY AND PROCEDURE Despite federal efforts to create a more unified response to delinquency, juvenile justice still depends on state law and the practices established in local jurisdictions. The intensity and diversity of interventions are deter- mined by where the youth happens to reside: “justice by geography” (Feld, 1991). In densely populated urbanized areas, there may be more specialized divisions in which to consider the needs of youthful offenders. In affluent communities, there may be diversionary programs that are not available to youth in impoverished communities. For youth living in impoverished areas, the juvenile justice process may be more similar to the criminal sys- tem, with fewer alternatives. In affluent areas, the existence of alternatives 9  The authors point out that the Survey on Youth in Placement, a survey of 7,073 youth in 2003, reflects the general scope of self-reported mental and emotional problems but is not diagnostic of specific disorders.

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86 REFORMING JUVENILE JUSTICE and diversionary programs may lead police to divert rather than to arrest youth. The varying level of a youth’s personal resources could affect system behavior as well. Youth who are disrespectful or contemptuous of authority are more likely to find themselves arrested and handled harshly (Black and Reiss, 1970). Youth who have the skills to be articulate and polite are more likely to be warned than arrested, offered services rather than sanctions, and treated rather than incarcerated (Cohen, 1985). In other words, deci- sions about the status of juveniles as delinquents are determined not just by the characteristics of the offense, but also by the personal characteristics of the juveniles and the social and emotional resources of their families. This kind of decision making is not only performed by law enforcement as the first line of decision makers, but also by intake, probation, and judicial officials (Emerson, 1991, 1974). Familial resources are equally relevant and serve as an indicator of the likelihood that an adolescent is in need of more intrusive interventions. Sons and daughters of single parents may be more at risk of harsher penalties because their families have less ability and opportunity to supervise their behavior (Bishop and Frazier, 1992). Complexity is an unavoidable quality of modern life, and it is not sur- prising that complexity affects juvenile justice decision making. There is a variety of subsystems that make up the larger juvenile justice system, and each of these subsystems has its own set of goals and values. The organiza- tional interests of probation officers are different from those of the police or prosecutors. A social worker sees delinquent behavior through a lens that is very different from that of a judge. Each of the central actors in the juve- nile justice system may express different values and preferences depending on their location. These systems and subsystems may be more complex in urban areas than in rural areas or sparsely populated small towns. Juvenile justice is resource dependent, and the resources available for youth mat- ter (Mulvey and Reppucci, 1988). In affluent areas, the existence of more treatment options may lead to greater numbers of youth being eligible for diversionary or treatment-oriented programs. Organizational theorists sometimes employ the phrase “loose cou- pling” to describe decision making in large and complex systems, including juvenile justice (Singer, 1996). A prosecutor’s office is loosely connected to the probation department, but prosecutors have an interest in advocating a particular disposition that might conflict with the preferences of probation officials. Each group may be aware of the other’s position in an individual case, but each will act to further its own goals and purposes whether or not the other agrees. In contrast, the response of police may be more in sync with that of the prosecutor, and in this regard these subsystems may be more tightly coupled. Their interests are more naturally aligned. Justice systems are likely to bring greater agreement to the decision-making process

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CURRENT PRACTICE IN THE JUVENILE JUSTICE SYSTEM 87 in individual cases by considering the seriousness of the offense, but extra- legal factors are involved almost immediately (Matza, 1964). This is when it becomes relevant whether subsystems are loosely or tightly connected. If there is plenty of residential space, for example, more offenders will be viewed as appropriate for out-of-home placement. If residential space is limited, probation may be the only feasible option. In other words, one part of the system is loosely connected to the other, influencing each stage of decision making. The juvenile justice system is more tightly coupled around serious violent offenses, but such charges account for only 1 in 20 arrested juveniles (Federal Bureau of Investigation, 2011). The system can operate in a tightly coupled manner when responding to cases of murder, rape, and robbery, but in the vast majority of cases the system functions in a more loosely coupled way. SUMMARY Policies and practices that guide the handling of justice involved youth vary substantially among local and state jurisdictions. These differences are rooted in large part in ambivalence about juvenile justice system goals as well as different perspectives of its participants and decision makers. The ages at which youth are handled by the juvenile court—both in law and in practice—have been subject to significant modifications in recent years, often symbolizing this ambivalence. Juvenile crime data are difficult to interpret because they measure arrests and not actual crime. What we do know is that juvenile crime has declined since its peak in the 1990s and that the juvenile court is handling a different mix of offenses than in the 1990s—more youth being processed with misdemeanor assaults, drug offenses, and disorderly conduct, and fewer youth with violent offenses and serious property crimes. Similar to the adult system, the juvenile justice system operates like a funnel with only a fraction of cases referred to juvenile court ending up being formally processed and adjudicated. For example, in 2008, a little more than half of all cases were formally petitioned. Of those petitioned, again slightly less than two-thirds were adjudicated. Cases falling into the nonadjudicated category include cases either waived to adult court or those in which the youth received some form of informal probation or other voluntary disposition. For those youth whose cases were adjudicated, slightly more than half received probation while slightly more than a quarter resulted in place- ment outside the home in a residential facility. Large increases in out-of- home placement were experienced by youth adjudicated for obstruction of justice, simple assault, drug law violations, violent crime index offenses, and vandal­sm. In terms of actual numbers of cases, however, property i

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88 REFORMING JUVENILE JUSTICE offense cases consumed the largest share of adjudicated delinquent cases that resulted in out-of-home placement. Certain steps are common to most juvenile justice systems, regardless of terminology, court organization, or the allocation of service delivery responsibilities. Court processes are also shaped by due process require- ments although it is difficult to generalize about their implementation and impact. Race appears to play a part in arrests and juvenile court processes. For example, in 2008, black youth were more likely to be formally handled than white youth, more likely to be detained, and less likely to result in adjudication once petitioned. The bias in favor of white youth returned at the dispositional stage with that of black youth is more likely to end in out-of-home placement. Finally, the chapter noted that during the past two decades, many youth have come to the attention of the juvenile justice system from schools, child welfare agencies, and the mental health system. This phenomenon is explored in greater depth in Chapters 4 and 8.