A Separate Court for
Children:
Historical Antecedents
of a Juvenile Court
Class 4
CASE OF THE DAY
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“Confinement for 2 Athletes in Sex
Abuse of Teammates”
http://www.nytimes.com/2004/01/15/nyre
gion/15haze.html
– “Hazers off easy” – New York Daily News
– Turning a deaf ear to victims' pleas, a judge sentenced
two football players from Long Island's Mepham High
School to at least four months in juvenile facilities for
sexually torturing younger teammates.
Another Case of the Day

$250,000 Bail Set in Boston for Boy, 12, Found
with Gun,” 2005 WLNR 13360631
– Officers heard loud bang, stopped three boys, one of whom
was holding an object in a bandana, found gun wrapped in it
– Case referred by police to Boston Juvenile Court
– Kid had no prior court record
– Judge overrode prosecution request for $5,000 bail
– Family unable to post bail, kid detained
Citing serious problem with guns, Judge wanted
to “send message” about the Court’s concern for
safety
 Judge considered “all factors in child’s life” plus
“side factors” that might indicate threat
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Origins of a Separate Court
Common law origins of separate
jurisprudence
 Institutional separation followed much later

– House of Refuge, 1824
– Diversionary and protective rationale
– Between 1840s and 1870s, most states had
built separate institutions for juvenile offenders,
called “reformatories”
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Followed jurisprudential evolution
– Passage of infancy defense laws (children
under 10 were incapable of committing a
crime)
Changing Historical
Contexts
Immigration waves in the 19th and 20th centuries
 Industrialization and urbanization
 Reflected the rise of the new social science of
child development, expansion of the legal
profession, and a demand for a more effective
response to the social threat of youth crime (rise
of social science in universities, too)
 Temperance and suffrage movements

– Political strategy to uncouple JC legislation from
suffrage

Political threat to court grew as population
changed and crime rates rose
The New Juvenile Court
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Chicago, Denver were first
Children’s Bureau in federal government in 1912
368 juvenile courts in all but two states by 1927
A uniquely American creation, but a bureaucratic
manifestation of an old state function
Initially shaped by the concept that a child could not
commit a crime, and that treatment was more effective
than punishment in reducing further crime
Most courts copied the language and categories defined
by the two early juvenile courts (diffusion of innovation)
Politics: Competition with Industrial Schools for $
The Diversionary Rationale
Institutional and jurisprudential separations were
based initially on stigma prong: young offenders
should be separated from the corrupting
influences of adult criminals, protected from
“idleness,” removed from their corrupting
neighborhoods.
 Juvenile court would assume the “protective”
role of the parent
 Privacy rationale to avoid social stigma
 Separate language to go along with separate
institutions and separate logic

The Rehabilitative Rationale
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Reformers expanded institutional and jurisprudential
rationales to include intervention in children’s lives
– Progressives and the growing influence of social science
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Court expanded its reach to “all troubled children,” not
just those who broke the law
Goal was to turn delinquent, dependent and other
“troubled children” into productive citizens
– Unwashed, unruly, unprotected, disobedient
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Its guardianship over a child was temporally indefinite
But the programmatic expression of this philosophy grew
slowly – murky child welfare philosophy prevailed
through the 1920s, to be replaced by psychology and
more “scientific” approaches to reform and rehabilitation
Funds were not there for elaborate services
A Democratic Experiment?
Most of the juvenile courts actually handed the
work of “rehabilitation” and supervision off to
private charities, or to child welfare agencies.
Not unlike today’s specialized courts (e.g., drug
courts)
 The “ideal” juvenile court was in fact a social
welfare agency, almost totally separated from
the common law doctrines of crime, culpability
and punishment, but linked by its capacity to
punish when social interventions failed
 This is one of the reasons why reformers
thought that children had no need for lawyers,
juries, notice, or the right to confront witnesses
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How Old is a Juvenile?
Socially, American culture assumed that 14 was an upper
limit on “childhood”, and permitted kids to work by that
age.
 Most offenders were in the 12-16 age range, but courts
took (and kept) adolescents through age 18 (there were
exceptions).
 Girls were referred to some juvenile courts through age
22
 So, these early courts extended the chronological age of
childhood well beyond the age that most Americans
considered them to be competent to assume adult roles
(work, marry, leave school).
 Illinois statutes parse childhood by crime and age

Ages
Crimes
PA 94-0574
Ages
Crimes
EXCLUDED
17
All Crimes (1906 Boys
1973 Girls)
EXCLUDED
17
All Crimes
AUTOMATIC
TRANSFER
15 and 16
Murder (1982)
AUTOMATIC
TRANSFER
15 and 16
Murder
15 and 16
Aggravated Criminal Sexual
Assault (1982)
15 and 16
Aggravated Criminal Sexual
Assault
15 and 16
Armed Robbery with a firearm
(1982)
15 and 16
Armed Robbery with a firearm
15 and 16
Aggravated Vehicular Hijacking
(1995)
15 and 16
Aggravated Vehicular Hijacking
15 and 16
Unlawful Use of a Weapon on
School Grounds (1985)
15 and 16
Unlawful Use of a Weapon on
School Grounds
15 and 16
Delivery of a Controlled
Substance within 1000 feet of a
school or public housing
(includes possession with intent
to deliver) (1985) - Non Class X
offenses can be reverse waived
to juvenile court (2003)
*
15 and 16
MOVED - to Presumptive
Transfer Statute
15 and 16
Aggravated Battery with a firearm
within 1000 feet of a school
(2000)
*
15 and 16
EXPANDED – All Aggravated
Battery with a Firearm
13, 14, 15,
16
Murder in the course of
Aggravated Criminal Sexual
Assault (1995)
13, 14, 15,
16
Murder in the course of
Aggravated Criminal Sexual
Assault
Any Minor
Violation of Bail Bond or Escape
(1991)
Any Minor
Violation of Bail Bond or Escape
Any Minor
Once Transferred and ConvictedAlways Transferred (1999)
Any Minor
Once Transferred and ConvictedAlways Transferred
MANDATORY
TRANSFER
PRESUMPTIVE
TRANSFER
15 and 16
Forcible Felony with prior felony
conviction and gang activity
(1990)
15 and 16
MANDATORY
TRANSFER
15 and 16
Forcible Felony with prior felony
conviction and gang activity
Felony with prior forcible felony
conviction and gang activity
15 and 16
Felony with prior forcible felony
conviction and gang activity
15 and 16
Presumptive Transfer Crime and
prior forcible felony (1990)
15 and 16
Presumptive Transfer Crime and
prior forcible felony
15 and 16
Aggravated Discharge of a
Firearm within 1000 feet of a
school (1995)
15 and 16
Aggravated Discharge of a
Firearm within 1000 feet of a
school
15 and 16
Class X felonies other than
Armed Violence (1995)
15 and 16
Class X felonies other than
Armed Violence
15 and 16
Aggravated Discharge of a
Firearm (1995)
15 and 16
Aggravated Discharge of a
Firearm
15 and 16
Armed Violence with a firearm
when predicated offense is a
Class 1 or 2 felony and gang
activity (1995)
15 and 16
Armed Violence with a firearm
when predicated offense is a
Class 1 or 2 felony and gang
activity
15 and 16
Armed Violence with a firearm
when predicated on a drug
offense (1996)
15 and 16
Armed Violence with a firearm
when predicated on a drug
offense
15 and 16
Armed Violence with a machine
gun or other weapon in (a)(7) of
Section 24-1 of the Criminal
Code of 1961 (1996)
15 and 16
Armed Violence with a machine
gun or other weapon in (a)(7) of
Section 24-1 of the Criminal
Code of 1961
PRESUMPTIVE
TRANSFER
Can the Juvenile Court CoExist with Due Process?
 “For the child’s own protection” (Schall v Martin)
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Zimring claims that diversionary principles can be
reconciled with procedural formality (lesser of evils, still
protective and less stigmatizing)
– Harlan: rights will create the “atmosphere of an ordinary criminal
trial”
– Fortas: “due process introduce(s)….order and regularity”
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Narrowing jurisprudence: the expulsion of non-criminal
offenders from the juvenile court (aka “status
offenders”) to better fit with the introduction of rights
and due process in the juvenile court
Understanding What the Court
is By Analyzing Who It Rejects
Beyond reform and diversion, there was no clear
articulation of who belonged and why
 Easier to understand the court’s rationales and
theory by looking at who it ejected
 Change in court boundaries and rationale
reflects changes in broader normative views on
penal policy and adolescence
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– Abraham and Tate cases
– Berkeley sex offender cases
– Drug crimes
Is it possible to reconcile other
punishment goals – deterrence,
incapacitation – with juvenile court
rationale?
 Concept of penal proportionality further
circumscribes the Juvenile Court’s
rationale – can there be a maturity
heuristic? Or a culpability heuristic?
 Discretion as a battleground in criminal
jurisprudence – why not in the juvenile
court, too? (Allen essay)
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Abolish? Ainsworth’s
(and Feld’s) Complaints
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Is the rationale for the court today different from 100
years ago?
– Punishment rationale? Explicit in statutes
As a social problem, why does the juvenile court need to
re-articulate its rationale (do other legal institutions?)
 Modernity (?) has mooted the concept of adolescence, or
at least confused it (Scott article)
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– Adolescence has always been a social construction anyway
– Legitimized by science, reified by academic institutions
– Drinking laws?

Rights violations in juvenile court trump diversionary
benefits
– especially in light of increasingly stiff punishments in juvenile
court (e.g., Washington [state])
Issues
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Popular or democratic rejection
– Is the ‘criminalization’ of youth crime also socially constructed?
Declining juvenile crime rates suggest that some components of
“adolescence” are enduring and transcendent
– Do waiver laws and investment of authority in prosecutors and
away from judge necessarily signify that the principles –
diversionary, interventionist – of the juvenile court are invalid?
– Does the shift of discretion to prosecutors inevitably lead to
normlessness? How to regulate it?
How adequate are Feld’s attempt to accommodate
principles of youthfulness and diminished culpability into
the criminal court?
 Competence?
 Penal proportionality?
 Does the new science signal the revival of the ‘scientist’
logic at the heart of the 19th century juvenile court
movement?
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