t
CONTENTS
INTRODUCTION
:
88
I.
BACKGROUND ON THE JUVENILE JUSTICE SYSTEM
A.
The Progressive Movement: "Saving" the Child from Adult
Courts and Adult Punishments
B.
Introduction of "Fundamental Fairness" to Delinquency
Proceedings-Kent and Gault
C. Post-Kent and Gault Judicial Reforms and Setbacks in
Juvenile Rights
D. Getting Tough on Juveniles: Modern Reform or
Lack Thereof
E.
Overview ofthe Juvenile Delinquency Process
F. Available Juvenile Dispositions
Commitment Facilities
90
91
92
95
II.
100
STATE-BY-STATE ANALYSIS OF JuVENILE COMMITMENT LAWS 102
A. Delinquency History
B. Age
C. Length of Commitment
,
102
107
110
III.
COMMITMENT POWER SHOULD NOT BE RIGIDLY LIMITED BY
96
97
98
LEGISLATURES
A. Rehabilitation ReqUires Flexibility
113
113 t Assistant Professor of Law and Director of the Criminal Justice Clinic, Texas Tech
University School of Law. J.D., magna ctun laude, Georgetown University Law Center;
B.S., sununa cum laude, John Jay College of Criminal Justice.
Member, New York,
Virginia, and Texas Bars. The author was fOffilerly an Assistant Commonwealthts Attorney in Alexandria, Virginia, where he served as the City of Alexandria's juvenile delinquency prosecutor. In law school, he was a student attorney with the Georgetown Juvenile Justice
Clinic. The author would like to extend his appreciation to Taylor Scott Ferguson, Class of
2006 of Texas Tech University School of Law, for his able and efficient research assistance.
87
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88 Syracuse Law Review [Vol. 55:87
B.
Protection ofthe Community Requires the Ability to
Impose Commitment
C. Legislatures Should Trust Family Court Judges
1.
Disproportionality
2.
Cost
D. Indeterminate Confinement Has Precedent in the Adult
Criminal Justice System and in Mental Health Commitment
Proceedings
117
119
120
123
124
IV.
SUFFICIENT STATUTORY PROTECTIONS CAN BE IMPLEMENTED TO
GUARD AGAINST DISPROPORTIONATE SENTENCES
A. Disposition Statutes Should Provide Standards
B.
Disposition Statutes Should Provide Factors To Be Applied
Before a Juvenile Can Be Committed
C. Dispositions Should Be Subject To Appellate Review
126
: 127
127
128
CONCLUSION..............•................................................................................ 128
ApPENDIX 130
INTRODUCTION
Juveniles who commit crimes face a variety of sanctions by courts.
Second to sentencing as an adult, the most severe penalty that can be imposed on a juvenile is "commitment"--confinement in a state-operated correctional institution for juveniles. Depending on the state, commitment may be for an indeterminate period of time.
Once sentenced to an
"indetenninate commitment," a juvenile will remain in state custody until released by the state juvenile justice agency or, in some jurisdictions, by court order.
Some states permit indeterminate commitment until the juvenile reaches the age of twenty-one.
Indetenninate commitment for the commission of a delinquent offense is a uniquely juvenile remedy. While an adult can be given a penitentiary or jail sentence, such confmement is usually for a fixed, determinate period of time or a range of time. In some states, a juvenile who is "committed" is essentially at the mercy of the custodial agency or a court to determine-at a future date-when he or she will be released. Courts use a variety of factors to detennine whether a juvenile should be committed, the severity or nature of the crime being, in some cases, secondary considerations. The result is that some committed juveniles receive sentences that are disproportional to their crimes.
Commitment is often viewed as a drastic and final step for juvenile delinquents.
Commitment facilities are usually secured institutions far

..
' - - - - - - - - - - - - - - - - - - - -
2004] Substantive Limitations 89 from the juvenile's home. Although not called prisons, they can have the look and feel of adult penitentiaries.
l
Sometimes the educational progranuuing provided to committed children is substandard.
2
Some observers have called for the elimination of commitment facilities, such as
Washington, D.C.'s infamous "Oak Hill.")
This article examines the substantive limitations that are placed in some jurisdictions on the ability of a
COlut to commit a juvenile to state custody.4 Some states grant nearly unfettered discretion to their family courts.
5
In those jurisdictions, a juvenile can be committed to state custody even for the commission of a relatively minor delinquent act, such as shoplifting.
6
In other states, the power to commit is statutorily limited to those juveniles who have committed certain specified crimes or types of crimes.
7
Some states, for example, only permit commitment of juveniles who have been convicted of felonies.
8
Others employ adult-like penalty
1. I have personally toured several juvenile commitment facilities in various states.
Often, these facilities are behind barbed wire and have anned guards patrolling the perimeter.
Juveniles are clothed in prison~like jumpsuits.
SOIDe commitment facilities follow a "boot camp" model in which children follow a regimented schedule, march from place to place, undergo early morning physical fitness, have close haircuts, and are addressed according to "rank." See also JenniferM. O'Connor & Lucinda K. Treat, Getting
Smart About Getting Tough: Juvenile Justice and the Possibility ofProgressive Reform, 33
AM. CRJM.
L.
REv. 1299, 1318 (1996) (describing juvenile corrunitment facilities as "prisons for juveniles").
2. See Cynthia M. Conward, Where Have All the Children Gone?: A Look at
Incarcerated Youth in America, 27 WM. MITCHELL L.
REv. 2435 (2001); Robert J.
Gemignani, Juvenile Correctional Education: A Time for Change, OJJDP
UPDATE ON
RESEARCH, Juv.
JUST. BULL., Oct. 1994 (arguing for more effective schools, academic
programs, special education, psychoeducational' programming, employment training, transitional services, and programmatic evaluation and research in education in commitment facilities).
3. See Michael Bochenek & Marc Schindler, Wrong Man For the Job, WASH. POST,
Oct. 26, 2003 at B8 (arguing for the closure of Oak Hill in favor of smaller, communitybased facilities).
4. This article does not address the commitment ofjuveniles because of mental illness.
--hike-aduhs;-juveniles-whosuffeI'-ffom a mental-illness. and who -pose a danger to themselves or others can be civilly committed to state custody for an indetenninate period of time.
"Commitment" in the context of this article refers to commitment as a result of a finding of guilt or delinquency for the commission of a ctime.
This article also does not address whether commitment itself is a sound policy. There is a great deal of literahlre about whether juvenile delinquents should be punished by being confined in an institutional setting, or whether more rehabilitative placements should be used.
See, e.g., Conward, supra note 2; Diane Ridley Gatewood, The High Cost ofJuvenile
Justice, 20 FORDHAM URB. LJ.
659 (1993).
5, See, e.g., VA. CODE ANN.
§ 16.1-278.8(A) (Micbie 2003 & Supp. 2004).
6. See id.
7. See, e.g.• WIS. STAT. ANN, § 938.34(4m)(a) (West 2000 & Supp. 2003).
8. See. e.g., OHIO REv. CODE ANN. § 2152.16(A)(J) (West 1994 & Supp. 2003); Wyo.
,I

90 Syracuse Law Review [Vol. 55:87 schemes where a juvenile's length of commitment is dependent on whether the crime he committed was a felony or misdemeanor.
9
The Supreme Court has not directly addressed the issue of discretionary sentencing for juveniles and, specifically, whether the disproportionality of some juvenile confinements is constitutional.
lO
This is despite the modern trend towards less 'judicial discretion over sentencing adult offenders.
I I
Part I gives a brief overview of the context of the discussion: the
/ juvenile justice system in America, Part II of this Article provides an analysis of the laws of each state on tlle issue ofjuvenile commitulent. Part
III demonstrates the benefits and problems associilfed wiihboth IflTI1ted ana-limitless commitment power.
Part IV proposes an alternative statutory scheme that provides for maximum judicial discretion while insuring tllat juveniles do not face grossly disproportionate punishment.
I.
BACKGROUND ON THE JUVENILE JUSTICE SYSTEM
In recent years, public attention has been refocused on the juvenile justice system through a number of high-profile cases. In April 1999 two armed gurnnen entered Columbine High School killing thirteen people and then themselves. The gurnnen were Dylan Klebold and Eric Harris, two disgruntled teenagers.
12
The 1990s also saw other reports of school-related violence.
13
Recently, a Florida appellate court reversed the conviction of
Lionel Tate who, at the age of twelve, killed a young girl while wrestling with her.
14
STAT. ANN. § 14-6-251 (Michie 2003).
9. See, e.g..
IOWA CODE ANN.
§ 232.52(2)(e) (West 2000 & Supp. 2004); TEx. FAM.
CODE ANN.
§ 54.04(d)(2) (Vernon 2002); VA. CODE ANN.
§ 16.1-278.8(A)(14) (Michie
2003 & Supp. 2004).
10. See Catherine J.
Ross, Disposition in a Discretionary Regime: Punishment and
Rehabilitation in the Juvenile Justice System, 36 B.C.
L.
REv. 1037, 1037 (1995) (noting that the Supreme Court has largely ignored the issue of proportionality in juvenile dispositions).
11.
Id; see also Mistretta v. United States, 488 U.S. 361 (1989) (upholding the constitutionality of the U.S. Sentencing Guidelines, which limit the discretion of federal judges at sentencing).
12. Tom Kenworthy, Up to 25 Die in Colorado School Shooting; Two Student Gunmen
Are Found Dead, WASH. POST, Apr. 21, 1999 at Al (describing the Columbine shooting).
13. See Christian Sullivan, Juvenile Delinquency in the Twenty-First Centwy: Is
Blended Sentencing the Middle-Road Solution for Violent Kids?, 21 N. ILL. U.
L.
REv. 483,
483 (2001) (describing policy reactions to a number of school-related shootings in the
19908).
14. Tate v. State, 864 So. 2d 44, 50 (Fla. Dist. Ct. App. 2003) (reversing a conviction for first-degree murder because the trial court failed to conduct a competency hearing).

Substantive Limitations 91
The juvenile justice system in the United States has had a fractured history.
Originally created to rehabilitate wayward youth, it has now become a junior version of the adult criminal justice systemY Juveniles are now afforded a panoply of rights and protections.16 At the same time, there has been an effort to punish more juveniles in the adult system or with adult-like sentences that are more punitive than rehabilitative. 17
A. The Progressive Movement: "Saving" the Childfrom AdultCourts and
Adult Punishments
Prior to the creation of the first juvenile court in l1linois in 1899, juvenile crime was primarily dealt with in the same manner as adult crime: through adjudication in criminal courts and ptmishment in adult penitentiaries.18
The Progressive movement of the nineteenth century expressed disdain for the imposition of adult penalties on young offenders.
Followers of the movement believed that courts should look to "save" children, not punish them. 19 Rehabilitation and treatment were preferred over punishrnent
20
For this reason, the "child-saver movement" believed that, for young criminals, the formalities of the criminal court should be abandoned in favor of a special, informal, kids-only court. The idea of the
"juvenile court" was bom.21
During the nineteenth century, governments and charities opened a number of institutions for the care and rehabilitation of delinquent youth.22
They had euphemistic names like "House of Refuge,"23 "State Industrial
School,"24 and "training school.,,25 The Pennsylvania Supreme Court in
1839 began its opinion in Ex parte Crouse by stating that Pennsylvania's
"House of Refuge is not a prison; but a school.,,26 The court went on to
15. See Conward, supra note 2, at 2445:46.
16.
See id.
at 2456.
17. See id.
at 2439.
18.
See id.
at 2437-39 (explaining history ofjuvenile justice in the United States).
19. See In re Gault, 387 U.S. I, 15 (1967) (discussing "child-savers movement"); fulian·Mack,.]he.J""""ilLQJUrt, 23 HARV.
L.
REv.
104, 119-120 (1909) (describing juvenile judge as benevolent father~figure)
20. Gault, 387 U.S. at 15-16 (explaining that initial juvenile proceedings were aimed at rehabilitating delinquents, truants, and other....wayward youth).
21. See Conward, supra note 2, at 2437-40 (describing the creation of the juvenile court).
22. Since the purpose was now the rehabilitation of offenders; the label "criminal" was dropped in favor oftbe euphemism "delinquent." See Gault, 387 U.S. at 23. Delinquency proceedings were considered "civil," not criminal in nature.
Id.
at 17.
23. Ex parte Crouse, 4 Wharl. 9, 9 (Pa. 1839).
24. Gault, 387 U.S. at 4.
25. In re Winship, 3971.1.S. 358, 360 (1970).
26. Crouse, 4 Whart. at 10.
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,

92 Syracuse Law Review [Vol. 55:87 justify the detention of children in this "school" because "[t]he object of the charity is refonnation, by training its imnates to industry; by imbuing their minds with principles of morality and religion; by furnishing them with means to earn a living; and, above all, by s,?Jarating them from the corrupting influence of improper associates.,,2 The commitment of children to the House of Refuge was constitutional, the court held.2s
Indeed, the court concluded its short opinion by stating that "[t]he infant has been snatched from a course whi9h must have ended in confirmed depravity; and, not only is the restraint of her person lawful, but it would be
.an get ofextreme cruelty ~o relellse her from it.
,,29
----
B. Introduction of "Fundamental Fairness" to Delinquency Proceedings-
Kent and Gault
The Supreme Court decided a number of cases in the 1960s and 1970s that radically altered the landscape of "juvenile rights" and juvenile justice in general.
The Court's holdings in Kent v. United States
30 and In re
Gaul?!
injected due process protections in delinquency proceedings nationwide. The result was that juveniles were now entitled to some-but not all-of the protections adults had been receiving in criminal proceedings for decades.
Kent v. United States addressed whether a juvenile was entitled to due process before being "transferred" to the adult criminal justice system. 32
Kent stemmed from a rape prosecution in the District of Columbia.33
District of Columbia law provided that a juvenile court could "waive" its jurisdiction and transfer a juvenile to the adult system if the juvenile was alleged to have conunitted an offense punishable by death or life imprisomnent and the court had conducted a "full investigation.,,34 In
Kent, the juvenile court did not hold a hearing before waiving its jurisdiction, despite defense counsel's request,35 The Supreme Court held that this, and other deficiencies, denied the juvenile due process of law.
36
The Court held that the waiver decision "is a 'critically important' action
27. [d.
28. [d.
29. [d.
(emphasis added).
30. 383 U.S. 541 (1966).
31. 387 U.s. 1 (1967).
32. 383 U.S.
at 552.
33. [d.
at 543.
34. [d.
at 547-48.
35. [d.
at 543.
36.
[d.
at 56!-62.
l

2004] Substantive Limitations 93 determining vitally important statutory rights of the juvenile.'>37 The juvenile was entitled to notice, an opportunity to be heard, an opportunity for his counsel to review his social history records, and a statement of the juvenile cOlm's reasons or considerations for waiving the case to the adult criminal justice system.
38
Despite providing these basic rights to the juvenile waiver process, the Court went on to state, "We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.,,39 The Court remanded the case to the U.S.
District Court to hold a de novo waiver hearing.
4o
Later, the U.S. Court of
Appeals reversed the District Court and held that Kent, now over the jurisdictional age of the juvenile court, should have remained in juvenile court in the first place
41
Kent was released from custody on the criminal charge, although he remained subject to a possible civil commitment due to mental illness.
42
Kent's holding was limited to waiver hearings in which the prosecution was seeking to have a juvenile tried and punished as an adult.
A year after Kent, however,' the Supreme Court decided In re Gault and addressed the more fundamental question of what due process, if any, a juvenile was entitled to in an ordinary, non-waiver juvenile delinquency prosecution.
43
Gerald Francis Gault was a fifteen-year-old Arizona boy who was on probation for "having been in the company of another boy who had stolen a wallet from a lady's purse.,,44 In June 1964 he was taken into custody by the local sherifffor making prank phone calls to a female neighbor
45
Law enforcement did not notify Gerald's parents that he was under arrest.
46
The
Gaults did not receive a copy of the formal chargiIig document until a later
37. Id.
at 556.
38.
Id.
'- '-39. 'TtLa! '562 (emphasis added) (citing Pee v. United States, 274 F.2d 556, 559 (D.C.
Cir. 1959)).
.
40. Id.
at 568.
41. Kent v. United States, 401 F.2d 408, 412 (D.C. Cir. 1968).
42. ld.
The D.C. Circuit's opinion is an oft-ignored milestone in the development of juvenile rights, particularly in the context of the District of Columbia's juvenile justice system.
See also Ross, supra note 10, at 1049 (discussing the Kent case on remand).
43. Gault, 387 U.S. at 4.
44. Id.
45. ld.
Justice Fortas wrote, "(i]t will suffice for purposes of this opinion to say that the remarks or questions put to her were of the irritatingly offensive, adolescent, sex variety." ld.
46.
Id.
at 5.

\
94 Syracuse Law Review [Vol. 55:87 habeas corpus hearing.
47
During hearings on the matter, the complainant did not appear.48
No record of the hearings was made.49
The juvenile court judge questioned Gerald about the offense.50 At the conclusion of the proceedings-which spanned the course of several hearings-"the judge committed Gerald Gault as a juvenile delinquent to the State Industrial
School 'for the period of his minority ... unless sooner discharged by due process of law. ",51 In Arizona, there was no right to appeal in juvenile delinquency cases.52
The Gaults did j;lot succeed in obtaining a writ of habeas corpus from the state courts, and an appeal to the U.S. Supreme
Court followed.53
The Court ruled 6-3 that Gault was deprived of his right to due process by not being afforded protections. that were consistent with
"fundamental faimess.,,54 The Court held that Gault's rights had been violated because he was not given adequate notice of the charges, he was deprived of his right to counsel, he was unable to question the complainant, and he was forced to testifY against himself.55
The disproportionality of Gault's sentence was not lost upon the
Supreme Court.
An adult convicted of making lewd phone calls could receive "a fine between $5 and $50, or imprisonment in jail for not more than two months.,,5(\ The juvenile court judge committed Gault to the
Arizona Industrial School. until his twenty-first birthday-in effect, a sixyear sentence 57 The majority cited this disproportionality as one reason for the need for basic due process in delinquency proceedings.58
"The summmy procedure as well as the long commitment was possible because
Gerald was 15 years of age instead of over 18.,,59
In reality, the Arizona Industrial School to which Gault was indeterminately committed was more like a prison thml a school. This fact did not escape the Supreme Court either. Justice Fortas, writing for the
47. Id.
48. Id.
49.
Id.
50. [d.
at 6.
There was a conflict in the testimony.
At a later hearing, Mrs. Gault testified that Gerald had said that he only dialed the phone and handed it to a friend.
Id. A
police officer testified that Gerald had admitted to making some of the comments. Id
51. Id.at7-8.
52. Id. at 8.
53.
Id.
54. Id. at 30-31.
55. Id. at 31-58.
56.
Id. at 29.
57.
Id. at 7.
58. Id. at 29-30.
59.
Id. at 29.

2004] Substantive Limitations 95 majority, pointed to this fact when he held that an accused delinquent is entitled, as a matter of due process, to "fundamental fairness. ,,60 Justice
Fortas stated:
It is of no constitutional consequence-and of limited practical meaning-that the institution to which [Gault] is conunitted is called an Industrial School. The fact of the matter is that, however euphemistic the title, a "receiving home" or an "industrial. school" for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time.
His world becomes "a building with whitewashed walls, regimented routine and institutional hours ...." Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and "delinquents" confined with him for anything from waywardness to rape and homicide.61
C.
Post-Kent and Gault Judicial Reforms and Setbacks in Juvenile Rights
After Kent and Gault, the Supreme Court decided a number of juvenile rights cases clarifYing the due process standard that was applicable to juveniles.
The Court held that the adult freedoms from double jeopardy62 and to proof "beyond a reasonable doubt" before conviction63 were equally applicable to juvenile cases. However, the Court followed its caution in Kent that, "[w]e do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial ....
,,64
In McKeiver v.
Pennsylvania, the Court declined to apply the right to a jury trial to juvenile proceedings.65 The Court held in Schall v.
Martin that juveniles may be detained, pre-adjudication, using a lower standard than that applicable to adults.66
Attempts to challenge the imposition of the so-called "juvenile death penalty"-capital punishment for an offense conunitted when an offender was under the age of eighteen-have been met with mixed success. In
Thompson v.
Oklahoma, the Snpreme Court held that the Eighth and
60.
!d. at 31; see also McKeive, v. Pennsylvania, 403 U.S. 528, 543 (1971) (noting
Gault's holding of "fundamental fairness").
61. Gauit, 387 U.S. at 27 (quoting Holmes' Appeal, 109 A.2d 523, 530 (Pa. 1954)
(Musmanno, 1., dissenting».
• \
62. Breed v. Jones, 421 U.S. 519, 527 (1975) (protection against double j e o p a r d y ' applies to juveniles as well as adults).
63. In re Winship, 397 U.S. 358, 368 (1970) Uuvenile convictions require proof beyond a reasonable doubt).
64. Kent v. United States, 383 U.S. 541, 562 (1966).
65. 403 U.S. 528, 545 (1971).
66. 467 U.S. 253, 268 (1984).

\
'\
96 Syracuse Law Review [Vol. 55:87
Fourteenth Amendments prohibited the execution of a defendant convicted for an offense which was committed when he was fifteen-years-old.
67
However, the Supreme Court declined to extend this ruling to crimes committed at the age of sixteen or seventeen.
68
D. Getting Tough on Juveniles:
Mode~n
Reform or Lack Thereof
In the 1980s and 1990s there was a general reaction against the juvenile justice system as being too lenient on offenders.
69
Headlines of brutal crimes being committed by juveniles fueled the public perception that juveniles were not being punished enough and thattJ:l<"sy~~n-w~in fact coddling them.
70
Legislatures reacted to a perceived increase in the frequency and violence of juvenile crime by passing "get-tough" legislation.
71
They enacted statutes that allowed juveniles to be certified for prosecution as adults at earlier ages and'for more offerises.
72
In some states, the power to transfer juveniles to the adult court system was taken away from judges and put in the hands of prosecutors.?3 The result has been that more and more juveniles are being prosecuted and punished in the adult criminal justice system.
74
Concurrent with the push to punish, some have criticized the adequacy of court-appointed counsel for juveniles.
75
The conclusion of the
67. Thompson v. Oklahoma, 487 U.S. 815, 838 (1988).
68. See Stanford v. Kentucky, 492 U.S. 361, 380 (1989). At the time of publication, a case was pending in the United States Supreme Courtw-hich revisited the question of whether a person can be executed for a crime committed as a juvenile.
See Roper v.
Simmons, 1I2 S.W.3d 397 (Mo. 2003), cert. granted, 72 U.S.L.W. 3487 (U.S. Jan. 26,
2004) (No. 03-633).
69. See, e.g., Randi-Lynn 'Smallheer, Note, Sentence Blending and the Promise of
Rehabilitation: Bringing the Juvenile Justice System Full Circle, 28 HOFSTRA L.
REv. 259,
269 (1999) (describing, shift in focus of the juvenile justice systems of many states).
'70. Id.
at 260,269.
71. Id. at 262.
72. See PATRICIA TORBET ET AL., OFFICE OF JUVENILE JUSTICE AND DELINQUENCY
PREVENTION, STATE RESPONSES TO SERIOUS AND VIOLENT JUVENIT..E CRIME 3-4 (1996)
[hereinafter STATE RESPONSES].
73. Id.
at 4.
74. Id.at 6.
75. See, e.g., A.B.A. JUVENIT..E JUSTICE CENTER, ET AL., A CALL FOR JUSTICE: AN
ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN DELINQUENCY
PROCEEDINGS 67 (2002) [hereinafter A CALL FOR JUSTICE] ("[M]any [juveniles] do not have access to counselor effective representation from arrest through disposition and postdisposition. Based on this assessment, this report calls for increased resources for juvenile defenders, improvement in the quality of representation at all stages of juvenile cases and continued collection of information about representation in juvenile court."); see also
AB.A
JUVENILE JUSTICE CENTER, ET AL., VIRGINIA: AN ASSESSMENT OF ACCESS, TO

2004]
.
Substantive Limitations 97
American Bar Association and other organizations is that the promises of
Gault and its progeny are not being realized.
76
The lack of adequate, effective representation means that, in some cases, juveniles' rights are not being fought for and protected.
77
E.
Overview ojthe Juvenile Delinquency Process
Procedure in the juvenile justice system is similar to the adult system, but with some exceptions.
It is important to pause to consider the procedural context of dispositional discretion, before turning to the question of whether discretion should or should not be limited.
Kentucky's juvenile procedures are fairly typical and provide a useful example.
78
The charging documents in Kentucky are the "complaint" and
"petition." In most states, juveniles are not indicted or charged by warrant.
Sirice juvenile cases are supposedly "civil" in nature, juvenile cases are usually started by a "petition." The prosecutor is the "petitioner" and the juvenile is the "respondent." In fact, petitions are not captioned in an adversarial nature. They are styled, "[i]n the interest of ... , a child.'.79
Any person may file a complaint.
80
An intake officer- a court employee, usually a juvenile probation officer-reviews the complaint to determine whether it is valid (whether it states an offense) and whether further action by the court is required
81
This is an example of the extraordinary discretion afforded probation officers and social workers in the juvenile justice system. Intake officers have the power to divert a case from going to court. For example, consider the case of an eight-year-old with no prior record who is referred to the court for prosecution for fighting in school.
The intake officer, after an appropriate investigation, could quite easily decide that the case should not be treated fonnally (e.g., with assault charges), but instead, should be handled through diversion.
Diversion could encompass anger management counseling, community service, and a letter of apology to the victim. If the diversion is completed successfully, the juvenile never sees the inside of a courtroom. The case is closed at the intake Tever:-Neveff1l:etess, in Kentucky, the court and the prosecutor have
,
COUNSEL AND QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (2002)
[hereinafter VIRGINIA ASSESSMENT].
76. See A CALL FOR JUSTICE, supra note 75 at 67.
77. See id.; VIRGINIA ASSESSMENT, supra note 75.
78. Kentucky's juvenile procedures for juvenile cases are set forth at Ky. REv. STAT.
ANN. § 610.010 (Banks-Baldwin 2000).
79. ld.
§ 610.020(1).
80. See id.
§ 610.030(1).
81.
Id.
\,
\

\
98 Syracuse Law Review [Vol.
55:87 the ability to review diversion agreements and to order that a particular case be petitioned for formal treatment.82
If a case is petitioned to the court, the next step is for the juvenile court to determine ifthere should be a temporary change in custody.83 This is the juvenile equivalent of a bail hearing. In order to make a change in custody, the court must find that the child is 'a danger to himself or others, or that his welfare is being threatened and an iImnediate change in custody is necessary.84 The child may be detainp:! in a "home or other suitable facility.,,85 It is also at this stage in the proceedings that the child is advised of his rights and collllsel is-illJ]JoirJted86 , ,The par~1l:ts~_9r other
--custodians, must likewise be given notice of the hearing and be advised of their rights and obligations under Kentucky law.87
The case is then continued for an "adjudication hearing," the juvenile equivalent of atrial.88 If the juvenile is found delinquent, either on the basis of an admission of guilt or the taking of evidence, the case is then continued for a disposition hearing, the juvenile equivalent of sentencing89
The purpose of the continuance is to pennit a fact-finding investigation into the juvenile's background by a probation officer. Unless an appropriate waiver is made and recorded, "the judge shall cause an investigation to be made concerning the nature of the specific act complained of and any sUiTOunding circU1TIstances which suggest the future care and guidance which should be given the child.,,90 The report of the officer's recommendation must be in writing and made available to counsel of record three days before the disposition hearing.9
!
At the disposition hearing, the court iInposes a sentence or disposition in accordance with the disposition statute.
92
F. Available Juvenile Dispositiol11i
A court sentencing an adult for a criIne is usually limited by the relevant penal code to one, or a combination of, the following: imposition
82.
See id.
§ 610.030(4).
83.
See id. § 610.050.
84. Id.
85.
!d.
86. See id.
§ 61O.060(1)(a).
87. Id.
88.
See id.
§ 610.080.
89.
!d.
90.
See id. § 610.100(1).
91.
!d.
92. See id.
§ 635.060.

2004] Substantive Limitations 99 of a fine, confinement of the offender in jailor prison, or both. In juvenile proceedings, a judge usually has many more options.
In Kentucky, for example, a court has the option of imposing one or more of the following dispositions: 93
• order restitution to the victim;
• place the child on probation or home confinement tmder terms and conditions that the court shall determine;
• commit the child to the Department of Juvenile Justice, a child-caring facility, a child-placing agency authorized to care for the child, "or place the child under the custody and supervision of a suitable person;"
• if the child is fourteen or fifteen-years-old, order him to be held in a local, secure detention facility (the juvenile equivalent of a jail) for no more than forty-five days;
• if the child is sixteen years-old or older, order him to be held in a local, secure detention facility for no more than ninety days.
Some states go further and specify a long, laundry list of disposition options. For example, Virginia gives its juvenile court judges the authority to:
94
• pennit the juvenile to remain in the custody of his parents or guardians;
• order the juvenile to participate in such programs or services deemed appropriate;
• order the parent living with the juvenile to participate in such programs or services deemed appropriate;
• order a non-custodial parent to participate in certain programming, if necessary for the juvenile's rehabilitation;
• defer disposition for a period up to twelve months with the
. possibility of dismissal; .
-- -.--derefdisjJosition and place the juvenile- in a boot camp program;
• defer disposition for a period up to twelve months with the possibility of dismissal, during which time the juvenile is placed on formal probation;
• place the juvenile on formal probation with terms and conditions;
93. Ky. REv.
STAT.
ANN.
94.
§§ 635.060(1)-(6) (Banks-Baldwin 2000).
VA.
COOEANN.
§ 16.1-278.8(A) (Michie 2003 & Supp. 2004).
\
,

\
100 Syracuse Law Review [Vol. 55:87
• order drug treatment;
• impose a fine up to $500;
• suspend the driver's license of the juvenile or impose a driving curfew;
• require restitution to the victim;
• require participation in a public service project;
• transfer legal custody to a relative or other individual;
• transfer legal custody to a child' welfare organization or agency;
• transfer legal custody to the local department of -s-odal servIces;
• commit the child to the Department of Juvenile Justice;
• commit the child to a local detention facility;
• require participation in a gaJigcprevention program.
Thus, the range of options for a juvenile court judge at disposition is often wider than that of an adult criminal court judge at sentencing. This evidences, in part, a belief that juvenile courts should have greater options and flexibility in disposing of juvenile delinquency matters.
Juvenile dispositions are individualized in nature, with each sentencing order crafted to suit a particular child's best interests.
G.
Commitment Facilities
More and more juveniles are being confmed in juvenile commitment facilities as a component of their dispositions.
95
A surprisingly large percentage of the juvenile population in many states and cities is confined at anyone time in a commitment facility.
A 1997 study, for example, found that 498 out of every 100,000 juveniles in California were housed in a public commitment facility.96
focus.
COlmnitment facilities are usually punitive, not rehabilitative, in
97
They can have the look and feel of adult prisons.
98
A modern trend is for commitment facilities to employ a "boot camp" or military
95. STATE RESPONSES, supra note 72, at 31 (discussing the responses taken by many
states to a perceived increase in the quantity and seriousness of youth crime).
96. Melissa Sickmund, State Custody Rates. 1997, OJJDP, Jw. JUST. BULL., Dec.
2000, at 2.
97. See Jennifer M.O'Connor & Lucinda K. Treat, Getting Smart About Getting
Tough: Juvenile Justice and the Possibility of Progressive Reform, 33 AM. CRlM.
L.
REv.
1299,1318 (1996).
98. [d. at 1309.

2004] Substantive Limitations 101 model for punishment and rehabilitation.
99
These programs omihighly structured daily living for inmates.
The typical juvenile will spend a shorter, more intense period of time in a "boot camp" facility than in an ordinary institution.
100
The Texas Youth Commission (TYC), the commitment agency for juveniles in Texas, describes its program as "Resocialization:"
The environment at all correctional institutions consists of a sixteenhour day that requires youth be engaged in constructive activity during all waking hours. Activities are centered around the four cornerstones of Resocialization and include education, physical training, military movement drills, correctional therapy sessions, leadership and social skills training, work activities, facility maintenance, homework, meals, and personal hygiene routines. By keeping youth continually and constructively occupied, youth have fewer opportunities to get into or create trouble within facilities.
To enhance TYC's role as a juvenile corrections agency, other changes have been implemented in all correctional institutions.
Uniform dress, neat personal appearance, and military style haircuts are mandatory at rye fucilities.
A distinction is made between youth rights and earned privileges.
Due process, medical care, food, clothing, and shelter are basic needs provided to all youth.
However, a youth must now earn his or her privileges.
101
Commitment facilities have been criticized on policy groundS.
102
Some facilities have been the subject of litigation for substandard conditions.
103
A disproportionate number of juveniles in commitment facilities are racial or ethnic rninorities.
104
The monetary costs of operating
99. See Teressa Ravenell, Left, Left, Left, Right Left: The Search for Rights and
Remedies in Juvenile Boot Camps, 35 COLUM.
J.L.
& Soc.
PROBS. 347, 352 (2002)
(describing and critiquing boot camps).
100.
fd.
at 351-52.
'- -. ' JOl. _Texas Youth Commission, Basic Correctional Treatment and Resocialization
(1999), aVaiiaNeathttp.!!www.tyc.state.lx.uslprogramslbasic_treat.html(last modified July
25,2003).
102. This article does not address whether commitment is an appropriate disposition.
Rather, this article addresses the"legal standard by which juveniles are committed.
103. See Paul Holland & Wallace J.
Mlyoiec, Whatever Happened to the Right to
Treatment?: The l'vfodern Questfor a Historical Promise, 68 TEMP. L. REv. 1791, 1794
(1995) (discussing the evolution of the «right to treatment" as well as various lawsuits \ brought to enhance the conditions at Oak Hill and other commitment and detention facilities).
104. See Brent Pattison, Minority Youth in Juvenile Correctional Facilities: Cultural
Differences and the Right to Treatment, 16 LAW & INEQ. 573, 573-75 (1998) (juvenile inmates are disproportionally members of racial or ethnic minority groups).
,
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102 Syracuse Law Review [Vol. 55:87 such facilities can be high; the national average in 1991 was $29,600 per resident per year.
lOS
In 1988, New York spent $55,300 per resident per year.
I06
By 1994, that figure had increased to $70,000. 107
II. STATE-BY-STATE ANALYSIS OF JUVENILE COMMITMENT LAWS
Juvenile justice is a concept unique to state government. Although
\ . the federal criminal justice system provides a procedure for the prosecution and punishment/treatment of juvenile offenders, of federal laws,108 the federal juvenile justice system is rarely used. 109 There is. no constitutional right to treatment as a juvenileYo A state could, in theory, have no juvenile justice system, arid instead-proVlde-for ihe-pros'ecution-and punishment of all minors as with adults.
I I I
Juvenile delinquency laws vary considerably state-by-state.
Some states provide all-encompassing youthful offender treatment.
Others provide only limited juvenile treatment for certain offenders and offenses; all other offenders are treated equally with adults.
Similarly, juvenile conunitment schemes differ from state-to-state. The criteria and procedure for cornmitment is provided by statutory law.
Conunitment statutes differ in three basic categories: (1) whether a juvenile must be convicted of a certain type of offense before being eligible for conunitment; (2) whether there is a minimum age for conunitment; and
(3) how long a juvenile may remain committed.
A. Delinquency History
Some states restrict a judge's power over a juvenile offender by prohibiting conunitment unless the juvenile has a minimum history of delinquency.ll2 Some states permit commitment only if the juvenile has been convicted of a felony.1l3
Other states require either a felony adjudication or a series of misdemeanor convictionsY4 The majority of
105. See Gatewood, supra note 4, at 666.
106. !d.
107. See O'Connor & Treat, supra note 97, at 1319.
108. 18 U.S.C. §§ 5031-5042 (2000).
109. See Alicia K. Embley, Note, Federal Jurisdiction Over Juveniles: Who Decides?,
64 MO.L.REv. 171, 172-74(1999).
110. See Commonwealth v. Wayne W., 606 N.E.2d 1323, 1326 (Mass. 1993).
11 1. See id. (holding that children do not have the right to treatment in a separate, juvenile justice system, and may instead be transfelTed to the adult criminal justice system).
112. See, e.g..
WIS. STAT. ANN. § 938.34(4m)(a) (West 2000 & Supp. 2003).
113. See, e.g., OHIO REv. CODE ANN. § 2152.16 (West 1994 & Supp. 2003).
114. See, e.g., IOWA CODE ANN. § 232.52(2)(e) (West 2000 & Supp. 2004).

2004]
103 states place no restrictions on the commitment sanction. Figure 1 shows which states restrict commitment based on offense history.
Figure 1.
Restrictions on Commitment Based on Delinquency HistoryllS
D
Juvenile can be conunitted for any offense.
Commitment requires felony conviction.
Commitment requires felony conviction or a series of misdemeanor convictions.
Commitment requires conviction for an offense with a minimum adult penalty.
115. For the benefit of readers who are accessing this document through an electronic database, the following transcription of the map is provided:
• Commitment requires felony conviction-Ohio and Wyoming.
• Commitment requires felony conviction or a series of misdemeanor convictions-
Iowa, Montana, Texas, and Virginia.
• Commitment requires conviction for an offense with a minimum Rdult penalty-
I11inois, Washington, and Wisconsin.
• Juvenile can be committed for any' offense-all other states.
\

104 Syracuse Law Review [Vol. 55:87
Two states-Ohio and Wyoming-permit commitment only if a juvenile has been convicted of a felony."6 Ohio's statute provides: "If a child is adjudicated a delinquent child for committing an act that would be a felony if committed by an adult, the juvenile court may commit the child to the legal custody of the department of youth services for secure confinement ...."
117
In both of. these states, an offender is committable even if the predicate felony occurred in the past
118,
For example, consider a juvenile who is convicted of robbery, a felony, and placed on probation.
If he subsequently commits even a minor misdemeanor, such as shoplifting, the judge has the power to commit him becausehe-nad previous1y15eeh----convicted of a.felony.ll9
Four states-Iowa, Montana, Texas, and Virginia-require either a predicate felony or a series of predicate misdemeanors in order to make a juvenile committableYo Virginia's dispositional statute, for example, states:
[T]he juvenile court or the circuit court may ... [c]ommit the juvenile to the Department of Juvenile Justice, but only if he is eleven years of age or older and the current offense is:
(i) an offense that would be a felony if committed by an adult,
(ii) an offense that would be a Class I misdemeanor if committed by an adult and the juvenile has previously been fOUIld to be delinquent based on an offense that would be a felony if committed
. by an adult, or
(iii) an offense that would be a Class I misdemeanor if committed by an adult and the juvenile has previously been adjudicated delinquent of three or more offenses that would be a Class I misdemeanorif committed by an adult ....
121
116. OHIO REv. CODE ANN. § 2152.16; WYo. STAT. ANN. § 14-6-251 (Michie 2003).
Wyoming operates on a "sanction level" system that is discretionary. ld. §§ 14-6-245,246.
However, judges who deviate from the guidelines are required to state their reasons in writing.
[d.
§ 14-6-246(d).
117. OHIO REV. CODE ANN. § 2152.16(A)(I).
118. [d.
§ 2152.16; WYO. STAT. ANN. § 14-6-251.
119. See WYO. STAT. ANN.
§ 14-6-246(c). Procedurally, the juvenile could also have his probation revoked and then be resentenced on the original felony charge. ld. § 14-6-
246(c).
120. IOWA CODE ANN. § 232.52(2)(e); MONT. CODE ANN. § 41-5-1513 (2003); TEX.
FAM. CODE ANN. § 54.04(d)(2) (Vernon 2002); VA. CODE ANN. § 16.1-278.8(A)(14)
(Michie 2003 & Supp. 2004).
121. VA.CODEANN.§ 16.1-278.8.

2004] Substantive Limitations 105
Thus, to be committable in Virginia, a juvenile must either be before the court: (1) being sentenced for a felony; (2) being sentenced for a Class
1 misdemeanor,122 having been previously convicted of a felony; or (3) being sentenced for a Class 1 misdemeanor, having been previously convicted of three separate Class 1 misdemeanors on three separate occasions.
123 In Texas, the mnnber of predicate misdemeanors is twO.
124
Iowa's statute is more complicated than the others.
To be committable, a juvenile must meet one of the following criteria:
(1) convicted ofa forcible felony;
(2) convicted of murder or manslaughter;
(3) convicted of felony dmg distribution; or
(4) three of the following conditions exist:
(a) the child is at least fifteen and placement would be in his or her best interests;
(b) the child committed a crime against a person which would be an aggravated misdemeanor or felony;
(c) the child was previously found delinquent; or
(d) the child was previously placed outside ofthe home.
125
Montana's statute provides that a juvenile is committable upon adjudication of either a felony or misdemeanor, but commitment for a misdemeanor can only occur if:
(i) the youth committed four or more misdemeanors
12 months; .
in the prior
•
(ii) a psychiatrist or a psychologist licensed by the state or a licensed clinical professional counselor or a licensed clinical social worker has evaluated the youth and recommends placement in a
--state yoiifhcorrecti6nal facility; and
,
122. In Virginia, a ''Class 1 misdemeanor" is the most severe'form of misdemeanor.
For adults, it is punishable by confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.
ld.
§ 18.2-11.
123. ld.
§ 16.1-278.8(A)(14).
124.
TEX. FAM. CODE ANN.
§ 54.04(s).
125.
IOWA CODE ANN. § 232.52(2)(e).

\
106 Syracuse Law Review [Vol. 55:87
(iii) the court finds that the youth will present a danger to the public if the youth is not placed in a state youth correctional facility.
126
Wisconsin pennits connnitment only if a juvenile is convicted of an offense which is punishable by confinement for more than six months.
127
Washington state uses mandatory sentencing' guidelines to determine a juvenile's sentence.
128 Only convictions for certain offenses can result in connnitment to the state; other convictions must result in "local sanctions."~:29
Illinois sets a similar baseline to trigger_ the .. availalJility of connnitment as a disposition.
130
A juvenile in Illinois may only be connnitted to the Department of Corrections, Juvenile Division, if a term of incarceration is permitted for an adult found guilty of the same crime.
l3l
Thus, a juvenile cannot be connnitted or incarcerated for an offense which would only result in a fme if connnitted by an adult.
132
All other states give their family court judges complete latitude in connnitting a wide-spectrum of offenders.
133
In theory, a juvenile sentenced in these jurisdictions for shoplifting could receive the same sentence as a juvenile being sentenced for robbery, rape, or murder.
Viewed from a different perspective, a family court judge in one of these jurisdictions could adopt a "law-and-order" attitude and lawfully connnit all juvenile delinquents~regardless of the offenses they were convicted
126. MONT. CODE ANN.
§ 41-5-1513.
127. WIS. STAT. ANN. § 938.34(4m)(a). In Wisconsin, therefore, a juvenile convicted of burglary is committable, but a juvenile who is convicted of trespass to land is not.
See id.
§§ 943.10, 943.13.
128. WASH. REv. CODE ANN.
§ 13.40.0357 (West 2004).
Washington's juvenile sentencing guidelines should be contrasted with Kansas·s.
In Kansas, all juvenile delinquents are eligible for commitment. Guidelines are used to detennine the commitment, not committability.
See infra Part II.C.
length of
129. WASH. REv. CODE ANN.
§ 13.40.0357.
130. 705 ILL. CaMP. STAT. ANN. 405/5-710(l)(b) (West 1999 & Supp. 2004).
131.
!d.
132. See id.
133. See John N. ,Kane, Jr., Dispositional Authority and Decision Making in New
York's Juvenile Justice System: Discretion at Risk, 45 SYRACUSE L.
REv. 925, 941-45
(1994).

" ,
2004] Substantive Limitations 107 of-to state custody.'34 There is little that can be done to challenge a judge's sentence in such a jurisdiction.
135
B. Age
Some states prohibit judges from committing juveniles who are below a certain age.
Y Olmger offenders are more likely to be rehabilitated at the local level, proponents argue. l36 Similarly, the youngest delinquents are more likely to be hardened, abused, or mistreated at juvenile correctional facilities where they are housed with their older counterpartsY'
Figure 2 demonstrates that over two-thirds of all states have no minimmn age for commitment. Only one-third have an age cutoff.
States which do not have a minimum age for commitment may nevertheless have a minimmn age for jurisdiction of the juvenile courtl3S or a minimmn age for criminal responsibility.l3O However, these minimums exist to preclude any sanction against a juvenile of a certain age. States which have a minimum age for commitment, on the other hand, permit sanctions short of commitment such as probation, sheltercare, community service, or incarceration in a local juvenile detention facility.14D
134.
In fact, this was the case in In re Ganlt, 387 U.S. 1 (1967).
Gault was convicted of making "lewd phone calls" and was committed to the Arizona State Industrial School.
ld.
at 7-8. At the time, Gault was fifteen-years-old. The judge's order permitted the state to hold Gault in' custody until he was twenty-one years old. ld. An adult who was convicted of the same offense would face a .maximum penalty of two months in jail.
ld.
at 9.
135. Arguably, however, a juvenile whose disposition (cortunitment) is grossly disproportionate to the crime committed (e.g., shoplifting, possession of an open container of alcohol, etc.) could challenge the disposition on the basis that it constitutes "cruel and unusual punishment" under the Eighth Amendment, U.S. CONST. amend. VIII, or constitutes a violation of substantive due process, an argument beyond the scope of this article.
136. See Abbie Riopelle, Alternatives to Prison Serve Juveniles Better, BALT. SUN,
-]ijlyT7~-ZOU3arloA'(iirgUing-To(-place111eIlt' of younger offenders in community-basedtreatment programs in lieu of juvenile detention facilities); see also, Jeff Barker, Younger
Offenders No Longer Placed at Ch(~ltenham Facility: State is Now Sending Most Boys
Twelve and Under to a Baltimore Center, BALT. SUN, Aug. 7,2003 at 2B.
137. A similar rationale is voiced for not placing juvenile offenders in adult correctional facilities. See Maria Grahn-Farley, A Child Perspective on the Juvenile Justice
System, 6 J.
GENDER RACE & JUST, 297, 312 (2002).
138. See, e.g., TEX. FAM. CODE ANN.
§ 51.02(2)(A) (Vernon 2002) (minimum age for jurisdiction over a child for juvenile justice purposes is ten).
139.
See, e.g., WASH.
REv.
CODE ANN. § 9A.04.050
(West 2004) (children noder the age of eight are "incapable of committing crime").
140. See, e.g., VA. CODE ANN. § 16.J-278.8(A) (Michie 2003 & Supp. 2004) (allowing for other sanctions such as probation or a community service project).
\
,

\
'\
108 Syracuse Law Review [Vol. 55:87
Figure
Restrictions on Commitment Based on Age l41
Minimum age for commitment.
D
No minimum age for commitment (except to establish jurisdiction).
As Table I demonstrates, minimum ages for commitment vary from state to state.
Some states, as noted below, malce exceptions for delinquents who connnit celiain designated-usually violent-felonies.
141. For the benefit of readers who are accessing this document through an electronic database, the following transcliption of the map is provided:
• Minimum age for commitment-Colorado, Illinois, Indiana, Iowa, Mississippi,
Nebraska, Nevada, New Jersey, North Carolina, Oklahoma, Oregon,
Pennsylvania, Virginia, Wisconsin, and Wyoming.
• No minimum age for commitment (except to establish jurisdiction)-all other states.

2004] Substantive Limitations
Table 1.
Minimum Agesfor Commitment
State
Colorado143
Illinois145
Indiana146
Iowa!4'
Mississippi149
Nebraska150
Nevada l52
New Jersey154
North Carolina156
Oklahoma157
Aze
142
12144
13
12147
12
12151
12153
12155
10
10
109
142. The states listed in Table 1 permit commitment at or above the designated age.
In other words, each minimum age includes that age (e.g., Colorado permits commitment for juveniles twelve-years old or over.).
143. COLO. REv. STAT. ANN. § 19-2-909(1)(a) (West 1999 & Supp. 2004).
144. A juvenile may be committed to the Colorado Department of Human Services even if he is younger than nvelve, provided that he is adjudicated delinquent ''for an offense that would constitute a Class 1, Class 2, or Class 3 felony if committed by an adult." Id.
145. 705 ILL. COMPo STAT. ANN 405/5-710(1)(b) (West 1999 & Supp. 2004).
146. IND. CODE ANN. § 31-37-19-7(a)(I)(A) (Michie 2003).
147. A ten or eleven-year-old can be committed to the Indiana Department of
Corrections for placement in a juvenile institution if he or she has been found guilty of murder.
ld.
§ 31-37-19-7(b).
148. IOWA CODE ANN. § 232.52(2)(e) (West 2000 & Supp. 2004).
149. MISS. CODE ANN. § 43-21-605(1)(g)(iii) (1999 & Supp. 2003).
150. NEB. REv. STAT. § 43-286(1)(b) (1998).
151. Juveniles who are under the age of twelve may be
Office of Juvenile Services.
.
made wards of the Nebraska ld.
§ 43-286(1)(b) (1996). However, they may not be placed at
Nebraska's two juvenile "Youth Rehabilitation and Treatment Centers" lIDless they have
violated the tenus of probation or have committed an additional offe~se and the court finds that the interests of the juvenile and the welfare of the commlIDity demand their coillifiittnertc- ftf.
The minimum age provision does not apply if the act in question is murder or manslaughter. ld.
152. NEV. REV. STAT. ANN. § 62E.51O(I)(a) (Michie Supp. 2003).
153. In Nevada, a juvenile delinquent may be committed to the custody of the state provided he is eight or older. ld. However, he may be placed in a state detention facility only ifhe is twelve or older. ld. Since we are concerned here with commitments that result in penal-style confinement, the minimum age of twelve is used.
154. N.J. REv. STAT. ANN. § 2A:4A-44(c)(I) (West 1987 &.
Supp. 2004).
155.
In New Jersey, juveniles age eleven or younger may be committed if they have been adjudicated delinquent of arson or a first or second degree felony. ld. In addition, children who are "developmentally disabled" may not be committed. ld..
156. N.C. GEN. STAT. § 7B-2513(a) (2003).
157. OKLA. STAT. ANN. tit. 10, § 7302-5.4(c) (West 1998). As with Nevada, a juvenile
I,
I
,
I
I

110 Syracuse Law Review [Vol.
55:87
Oregon!58
Pennsylvania!59
Virginial60
Wisconsin!6!
Wyomingl62
12
12
II
12
12
C.
Length ofCommitment
,
A third distingnishing feature between commitment statutes is the
_length ()ftime a juvenile may remain committed to state custody.
For mliny states, a juvenlle lUay remain in state custody'lintilthe jurlsUiCt10n of the court expires, usually at a specific age.
This is a unique feature of juvenile law. An adult offender is usually only incarcerated for a specific number of yeaTS or months. His
01" her term of incarceration-or the range thereof-is usually set by the sentencing judge. A juvenile offender, on the other hand, can find himself at the mercy of the state agency which has custody over him, or at the mercy of his date of birth. Some states believe that giving such unfettered power to unelected agency officials is unwise and have placed various restrictions on how long a juvenile can be held in state custody.l63
Some states-California, Florida, Illinois, Iowa, Louisiana, Montana,
North Carolina, and West ViTginia-permit commitment only for a period of time not to exceed the maximum that an adult, convicted of the same offense, could have received. 164 Florida's statute, for example, provides:
"Any commitment of a delinquent child to the Department of Juvenile
Justice must be for an indeterminate period of time ... but the time may under ten..years-old can be committed to the state, but state law prohibits the placement of such ajuvenile in a correctional-type facility for delinquent children.
158. OR. REv. STAT.
§ 419C.495 (2003).
159. 42 PA. CONS. STAT.
ANN.
§ 6352(.)(4) (Wes12000
160. VA. CODE ANN.
§ 16.1-278.8(.)(14).
& Supp. 2004).
161.
WIS.
STAT. ANN.
§ 938.34(4m) (West 2000 & Supp. 2003).
162. Wyo. STAT. ANN.
§§ 14-6-251(.)(i), 14-6-252(.)(i) (Michie 2003).
163. Mandatory, minimum sentences are beyond the scope of this article.
Part ILC.
concerns the maximum time that a juveliile can be held, either by the agency or the court.
164. CAL. WELF.
& INST. CODE § 726(c) (West 1998 & Supp. 2004); FLA.
STAT. ANN.
§ 985.231(I)(d) (West 2001 & Supp. 2004); 705 ILL. COMPo STAT.
ANN.
405/5-
710(1)(.)(viii) (West 1999 & Supp. 2004); IOWA CODE ANN.
§ 232.53(1) (WEST 2000 &
SUPF. 2004); LA. CODE JUV. PRoe.
ANN.
art. 898 (West 2004); MONT. CODE ANN. § 41-5-
1604(1)(b) (2003); N.C. GEN. STAT.
§ 7b-2513(.) (2003); W. VA. CODE ANN.
§ 49-5-13(b)(5)
(Michie 2001 & Supp. 2003).

2004] Substantive Limitations 111 not exceed the maximum term of imprisonment that an adult may serve for the same offense.,,165
Other states cap a juvenile's "length of stay" at a certain nnmber of years or months.
These statutes often provide exceptions for serious offenses, permitting the state agency to hold juveniles convicted of those crimes for longer periods of time.
Connecticut, for example, has an eighteen-month cap on commitment, making an exception for certain serious felonies:
[Clommitment of children convicted as delinquent by the Superior
Court to the Department of Children and Families shall be for
(I) an indetenninate time up to a maximum of eighteen months, or
(2) when so convicted for a serious juvenile offense, up to a maximum of four years at the discretion of the court, unless exte~ded as hereinafter provided. 166
A "serious juvenile offense" is defmed under Connecticut law to include: drug distrtbution, certain firearms offenses, injury to children, bomb making, extortionate credit transactions, murder and manslaughter, felonious assault, sexual assault, promotion of prostitution in the first degree, kidnapping, unlawful restraint, burglary, arson, larceny by extortion, larceny from person, hindering prosecution, robbery, distrtbution of drugs to a prison, employing a minor in an obscene performance, and running away from the custody of the Court Support Services Division or the Commissioner of Children and Families.167
Most st.ates that do place caps on the length of a juvenile commitment also permit judges to extend a juvenile's length of stay after a hearing and an opportunity to be heard. 168
165. FLA. STAT.
ANN.
§ 985.231(l)(d).
166.
CONN.
GEN. STAT. ANN. § 461>-141(a) (West 2004).
167. Id.
§ 46b-120(12).
168. See. e.g., id. § 46b-141(b) ("The Commissioner of Children and Families may file a motion for an extension of the cpmmitrnent as provided in subdivision (l) of subsection
(a) beyond the eighteen-month period on the grotmds that such extension is for the best interest of the child or the community. The court shall give notice to the parent or guardian and to the child at least fourteen days prior to the hearing upon such motion. The court may, after hearing and upon finding that such extension is in the best interest of the child or the community, continue the commitment for an additional peridd of not more than eighteen months.").

\
112 Syracuse Law Review
Figure 3.
Restrictions on Length of Commitment l69
[Vol. 55:87
D Length of commitment capped only by age and jurisdiction of court.
Length of commitment capped at maximum length of confinement that an adult could receive for same conviction.
Cap is also at age/jurisdiction of court.
Length of commitment capped at set number of years and also age/jurisdiction of the court.
Hybrid state: length of commitment capped at maximum adult could receive ;md set number of years, whichever is less.
169. For the benefit of readers who are accessing this document through an electronic database, the following transcIiption of the map is provided:
• Length of commitment capped at maximum length of confinement that an adult could receive for same conviction.
Cap is also at age/jurisdiction of court-
•
•
California, Florida, Illinois, Iowa, Louisiana, Montana, North Carolina, and West
Virginia.
Length of cOlmnitment capped at set number of years and also age/jurisdiction of the court-Alabama, Alaska, Colorado, Connecticut, Georgia, Kansas, Maryland,
New Jersey, New Mexico, New York, North Dakota, Oregon, South Carolina, and
Virginia.
Length of commitment capped only by age and jurisdiction of court-all other states and the District of Columbia.
• "Hybrid state:" length of commitment capped at maximum adult could receive and set number of years-Pennsylvania and Washington state.

2004] Substantive Limitations 113
Washington state and Pennsylvania are what I tenn "hybrid states."
In Pennsylvania, the length of commitment is capped at four years or the maximum sentence an adult could receive for the same offense, whichever is lessYo Similarly, Washington state uses federal· style guidelines that may be departed from only for manifest injustice.
17l In addition, there is a cap which prevents a juvenile from being confmed longer than the maximum which an adult could receive for the same crime.!n
III. COMMITMENT POWER SHOULD NOT BE RIGIDLY LIMITED BY
LEGISLATURES
Short of transfer to the adult criminal justice system, commitment is the most severe disposition that can be imposed upon a youth since it involves the greatest deprivation of his liberty.
It is not surprising then that some states have chosen to place limitations on the use of this disposition.
I believe such limits, however, are at odds with the purposes of the juvenile justice system, regardless of whether the juvenile justice system in question is purely rehabilitative, purely punitive, or something in between.
Limitations on commitment constitute unsound policy and should be legislatively repealed. The concerns that such limitations purport to cure can be more effectively addressed through other remedies, which I discuss in Part IV.
A. Rehabilitation Requires Flexibility
The promise of the juvenile justice system is its attempt to make juveniles better-to refonn their behaviors.
Delinquency is a disease which can be cured by sufficient social intervention from courts and social workers!73 ... or so the theory goes.
174 Onder a rehabilitative model of juvenile justice, judges are benevolent, parent-like figures who do what is best for the juveniles who appear before them, even if it means imposing some very tough love. 175 That tough love can take the fOITI! of a series of p"a~uate~ satlctions, ranging from probation to commitment. The theory
170. 42 PA.
CONS.
STAT. ANN.
§ 6353(a) (West 2000 & SUPP. 2004).
171. WASH. REV.
COOE ANN.
§ 13.40.160(2) (West 2004).
172. [d.
§ 13.40.160(10).
,
173. Mack, supra note 19, at 119.
174. The notion of the "rehabilitative ideal" has been critiqued by many, with some calling for the abolishment ofthe juvenile court altogether. See, e.g., Barry C. Feld, Abolish the Juvenile Court: YouthfUlness, Cn'minal Responsibility, and Sentencing Policy, 88 J.
CRIM.
L.
& CRlMlNOLOGY 68, 131-36 (1997).
175. Mack, supra note 19, at 120.
I.
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114 Syracuse Law Review [Vol. 55:87 goes that the juvenile court judge must use the tools-dispositions-that are available to him in order to reform the juvenile.
The medical analogy is helpful to understand the need for wide discretion in a rehabilitative model of juvenile justice. A physician who is faced with a patient with a potentially deadly disease, such as cancer, has a number of options. He can treat the disease' aggressively by, for example, employing a surgeon to remove the affected area of the body. There are always risks associated with surgery. For,example, the surgeon might miss some of the cancer, and the surgery will have been for naught. He could pursue a course of chemotherapy, a less invasiv-,"_but pot~ltially irleff(jctive method. The doctor could also choose to employ homeopathic remedies.
While doctors may have differing opinions about the efficacy of these options, few would support reducing those options through some legislative action or executive/managerial decree. Restricting the power to commit a juvenile is like preventing a doctor from using surgery to treat a patient, despite the fact that the doctor thinks that is the best course of action given the circumstances.
Consider restrictions based on the age of a juvenile.
In Illinois, the committable age is thirteen.
176
Let us assume that a twelve-year-old Illinois girl, Susan, appears before a judge with the following history.177 Susan is from a fractured home. Her father is unknown and her mother uses drugs on a regular basis. Susan's grandmother has legal and physical custody of her. Susan first presented to the juvenile justice system at age eight, when she beat up a classmate.
The referral was handled at the intake level through a diversion agreement.
Later that school year, she attacked a teacher, who pressed charges. By age nine, Susan had been adjudicated delinquent of assault for that offense and placed on probation. She adjusted poorly to probation. She frequently broke curfew, was failing school, had begun hanging out with older girls, and by age ten was using marijuana on a frequent basis. Susan was arrested and convicted of drug possession. At age eleven, she ran away from home for a period of several weeks.
Recently, she told her probation officer that she was sick of following his rules and that he and the judge could lass her ... posterior. The final straw was that grandma reported to the probation officer that Susan was physically abusive to her and to Susan's younger siblings.
176. 705 ILL. COMPo STAT. ANN. 405/5C71O(1)(b) (West 1999 & Supp.
2004).
177. While examples in this article are drawn in part ft.·om my experiences as an attorney in the juvenile justice system, these hypotheticals are not based on any particular case or child. Any comparison to a case that I may have handled is purely coincidental.

I r
2004] Substantive Limitations 115
The probation officer long ago had Susan evaluated for psychological and special education problems-both referrals were negative. Throughout her short history with the court, Susan has spent short stays in juvenile detention to no avail. Her probation officer has matched her up with a mentor and with after-school tutoring.
Susan participates in neither program. In fact, she has stopped going to school altogether. Because
Susan does not have special educational or psychological needs, she does not qualify for most residential programs.
Susan's example is not atypical in the juvenile justice system. Clearly
Susan is in need of "a new place to live." She has shown an 'escalation of behavior that requires attention.
Community-based sanctions-probation and short stays of detention-are not working. If anything, Susan is getting worse, as she is now lashing out at her caregiver and her siblings.
In Il1inois, a juvenile court judge would be powerless to commit this young person to state custody. The legislature in Il1inois has prejudged
Sus;m's case by declaring that twelve-year-olds are too young for commitment. Yet, this twelve-year-old might be a perfect candidate for the structure of a commitment facility.
It is a cornerstone of child development that kids grow up at different rates.J7
8 The Il1inois legislature's view that juveniles under thirteen-yearsold should not be committed to state custody might be well and proper for most kids tmder thirteen. But for the kids like Susan who are at the serious end of the delinquency spectrum, denying Susan's judge the power to commit her does a disservice to Susan, Susan's family, and the community.
My experience has been that many juveniles are smarter about the legal system than' many people thiulc Eventually Susan is going to catch on that she is not committable because of her age.!?9 00 we really want to give her a license to do whatever she wants?
If commitment is a form of rehabilitation-a place where a young person can go to learn structure, be forced to go to school, and abstain from drugs and other harmful influences-then we should not place artificial restrictions, based on
- aroiffiit)! agecutoffs;-on which juveniles can go to such facilities.
From a rehabilitation perspective, criminal history restrictions are perhaps even more troublesome than restrictions based on age. In Virginia,
178.
See Joseph P. Allen &,Claudia Worrell Allen, Getting the Elephant Out of the
Courtroom: Applying Developmental Perspectives to the Disposition (Not Just the
Assessment) of Juvenile Offenders, 6 VA. J. SOC. POL'y & L.
419, 426 (1999) (varying development rates ofjuveniles should be addressed in juvenile dispositions).
179.
In fact, when I was a prosecutor, I had several defendants tell me (usually in crude terms) that they were not committable and stop them from acting up in the community.
that there was nothing the judge or I could do to
\

\
116 Syracuse Law Review [Vol. 55:87 a juvenile is only eligible for commitment if he or she has been convicted of a felony or four separate misdemeanors. 180 The intent of the Virginia legislature is clear: commitment should be reserved for the most serious offenders. No argument here. My problem with Virginia's scheme (and similar schemes employed by other states) is that it pmports to use a child's delinquency history as the test for whether his behavior is sufficiently serious to warrant commitment.
Such a test may work well for the heattland of cases, but not for all cases.•
Felony-misdemeanor distinctions are problematic. Let us imagine a juvenile, Fred, who throws an egg at a car as a prank at Halloween. In
Virginia, he would be guilty ofa'felony.m-the "driver onile carneed not be injured and there is no requirement that the car have been damaged.
Despite the relative lack of seriousness of the crime, Fred is eligible for commitment in Virginia.
182
For a less extreme example, Fred would also be guilty of a felony ifhe stole a $200 TV. 183 Now consider if Fred's friend, Mark, had physically assaulted three people, causing injury (albeit not serious enough to constitute a "wounding").184 He would be guilty of three counts of battery.I's Nevertheless, Mark is not eligible for commitment. This is despite the fact that Mark might be the leader of a criminal street gang, a chronic truant, a heavy drug user, and an uncooperative probationer. Mark's home life might be a mess. His future as a serious adult offender might be crystal clear.
Like Susan, he is a perfect candidate for the structure and programming of a commitment facility. Yet the law does not care. Because he has not amassed eitller a felony or four misdemeanor adjudications, he is not eligible for commitment in Virginia, despite the presence of all the other aggravating factors in his life.
This leads to an important point about the juvenile justice system: A juvenile's criminal history is often not as important as his social history.ls6
The rehabilitative ideal recognizes that a juvenile's criminal behavior may
180. See VA. CODE ANN.
§ 16.1-278.8(a)(14) (Michie 2003 & Supp. 2004).
181. See id.
§ 18.2-154 (throwing "missiles" at an occupied vehicle is a felony).
182. See id.
§ 16.1-278.8(a)(14).
183. See id.§ 18.2-95 (a person is guilty of grand larceny, a felony, when he or she steals goods valued at $200 or more).
184. See id.
§ 18.2-51.
185. See id. § 18.2-57 (assault and battery is a misdemeanor).
186. See, e.g., State ex rei. D.D.H. v. Dostert, 269 S.E.2d 401,468-71 (W. Va. 1980)
(discussing rehabilitation and the need for individualized dispositions by courts); see also
Brandi Miles Moore, Comment, Blended Sentencing for Juveniles: The Creation ofa Third
Criminal Justice System?, 22 J. JlN.
L.
126, 129 (2001/2002) (noting that the juvenile justice system has historically looked at the offender, not the offense).

'_"wr"
2004] Substantive Limitations 117 be just the tip of an iceberg of other, more serious social, psychological, and educational problems.
A state, like Virginia, which restricts commitment authority based on criminal history-yet forces judges to look out for the rehabilitation of the juvenile-does a disservice to a troubling class of young people: those that present serious problems which we can predict will lead to future problems, but who have not amassed sufficient convictions to make them committable.
Virginia's scheme is arbitrary.
So is Illinois' age cut-off.
187 What makes a thrice misdemeanant any less worthy of commitment than a juvenile who has been convicted four times of a misdemeanor? Why does
Illinois permit the commitment of thirteen-year-olds, but not twelve-yearolds?
Is there really a difference between all twelve-year-olds and all thirteen-year-olds?
Both states make prejudgments about an offender's suitability for commitment.
Such limitations may be based on logical assumptions, but they are still arbitrary in that they attempt to pre-classify juveniles into categories without proViding escape valves for the exceptions to those assumptions. As I propose in Part IV, there is a way to fashion a dispositional scheme that keeps the logical assumptions for the heartland of cases but insures that juvenile court judges have the flexibility to depart from those assumptions in the exceptions to the rule.
B. Protection ofthe Community Requires the Ability to Impose
Commitment
The reality of modern juvenile justice is that some states are no longer concerned just with the rehabilitation of the offender.
I88
Protection of the community is also now a relevant consideration, in part because of the public's reaction to a perceived increase in juvenile crime and to a perception that juvenile courts were "coddling" juvenile offenders in the name of rehabilitation. Many juvenile codes have legislative findings or statements of purpose which reflect this shift in the goals of juvenile justice.
J89
" Protection 'of the corfittltltlity often goes hand-in-hand with ptmishment and incapacitation. Ptmishment seeks to teach an offender a
187. See 705 ILL.
COMPo STAT ANN.
405/5-710 (a)(v) (West 1999 & Supp. 2004).
188. See STATE RESPONSES,
189. See, e.g., supra
Barry C. Feld, note 72.
The Transformation of the Juvenile Court, 75 MINN. L.
REv. 691, 709-10, 717 (1991) (hereinafter Feld, Transformation) (noting the evo1ntion of legislative intent clauses in juvenile codes); Deborah L.
Mills, United States v.
Johnson:
Acknowledging the Shift in the Juvenile Court System From Rehabilitation to Punishment,
45 DEPAUL L.
REv. 903, 911 n.63 (1996); Linda F. Giardino, Note, Statutory Rhetoric: The
Reality Behind Juvenile Justice Policies in America, 5 J.
L.
& POL'y 223, 225 n.8 (1996).

\
118 Syracuse Law Review [Vol. 55:87 lesson: Do not do tlus crime again, or you will receive another unpleasant reaction from the State. This seeks to deter the offender as well as other members of the community who might be tempted to commit a similar crime (these are the concepts of specific and general deterrence, respectively). 190 This protects the community by making sure that the offender, as well as other would-be offencters, do not commit the crime in the future. Incapacitation protects the community by literally removing an offender and physically preventing him a defined period of time.
l9l pr her from committing crimes for
If protection of the community is now_ [ljloal of the juvenile justice system-through punishment and incapacitation-then it standS to reason that legislatures would want to provide tlleir fanlily court judges with a full arsenal of weapons to use against an offending member of the juvenile community, right? Not always.
While tlle medical analogy is useful to understanding the rehabilitative model of juvenile justice, a war analogy is useful when examining the community protection model. An army does not win wars by tying its soldiers' hands bellind their backs.
Sinlilarly, courts cannot protect the community by punishing and incapacitating serious offenders if they are not given tlle power of conmutment.
While linlitations on commitment may be harmful to the juvenile in a rehabilitative model, such linlitations may also be hannful to the community in a public protection model. Consider again the hypothetical of Mark-the thrice-convicted misdemeanant, gang member, truant, drug user, and unsuccessful probationer.
In Virginia, he is not committable because he has not been convicted of a felony or four nlisdemeanors.
192
Virginia has taken away a weapon from its juvenile court soldier-judges: the ability to commit Mark to a secure facility, removed from his community.'93 My experience as a juvenile court prosecutor was that many kids knew they were not committable. That fact heightened their sense of invincibility. Lilce the Mafia bosses of years ago, they felt they were made of Teflon.
Certain types of crimes and certain offenders are particularly difficult to prosecute. For those cases, it is difficult to amass the records needed to make the. juvenile committable.
Domestic abuse and gang cases, in
190. See WAYNER. LAFAVE, CRIMINAL LAW 26-29 (4th ed. 2003).
191. ld.
at 27. The problem with incapacitation, of course, is that eventually most
offenders are released from custody. What then7
192. See VA. CODE ANN. § 16.l-278.8(A)(14) (Michie 2003 & Supp. 2004).
193. ld.
The most Mark could receive is a short stay in detention and then replacement on probation.

2004] Substantive Limitations 119 particular, are difficult to prove because of the need for cooperation from abused victims (in the case of domestic abuse) or co-defendants (in criminal street gang cases).!94 For that reason, Mark's case is not unusual.
Again we see how the assumptions made by state legislators can negatively impact the disposition ofjuvenile cases. Not all misdemeanants are like Mark. Just as it would be improper to say that all thrice-convicted misdemeanants should be committed, it is equally as unwise to say that no such juvenile should ever be committed. The assumptions made by the legislatures in Virginia, Iowa, Wyoming, Ohio, and Texas pose a risk to the safety of the community.
C.
Legislatures Should Trust Family Court Judges
Underlying the limitations discussed earlier, there seems to be a distmst by some state legislatures of family court judges to construct proper dispositions in delinquency cases. This is disconcerting because family and juvenile courts are usually trusted with the most discretion of any court in a state system.!9' Family courts typically decide very tough and emotional cases on a daily basis such as child custody, visitation, domestic violence, paternity, abuse, neglect, and support matters. Most family court inquiries are highly fact-intensive.
For that reason, most appellate courts award great deference to the decisions of family court judges.!96 Why, then, the distrust of family courts in deciding whether a juvenile should be committed to state custody for a delinquent act?
I think there are two possible reasons.
First, commitment can sometimes be a disproportionate sentence and limitations on this disposition can help to insure that juveniles are not unfairly punished.
194.
See generally Howard Sukenic, Gang Wars: Prosecuting Gang-Related
Offenses-The Legal and Logistical Hurdles, 33 AR!z. Arr'y 25, 27 (Jan. 1997) (discussing the difficulties experienced in the prosecution of gang cases); Jennice Vilhauer,
Understanding the Victim: "A Guide to Aid in the Prosecution of Domestic Violence, 27
FORDHAMURB.
L.J-:-9-S~9S-3-(2000)-t"domestic-v-iolence cases can raise the anxiety level of even the most experienced prosecutor").
195. See Royce Scott Buckingham, The Erosion ofJuvenile Court Judge Discretion in the Transfer Decision Nationwide ana in Oregon, 29 WILLAMETIE L.
REv. 689, 691-92
(1993) (family court judges are generally afforded wide discretion to decide fact-intensive treatments).
196. Cesare v. Cesare, 713 A,2d 390, 413 (N.J.
1998) ("Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfmding. As noted previously by this Court, the Legislatme 'has reposed grave responsibilities on Family Part judges to ensure the safety and well-being of women and children in our society .... We are confident that they can successfully balance the interests of society in deterring the evils of domestic violence and caring for families.'"
(quoting Brennan v. Orban, 678 A.2d 667, 678-679 (N.J.
1996))).

120
[Vol. 55:87 .
Second, connnitment is an expensive proposition and legislatures want to insure that only the most serious offenders are being housed, fed, and reformed at the state's expense. Regardless of the reason, it appears that some legislatures simply do not trust their family court judges to make the correct decisions in delfuquency dispositi<?ns.
1. Disproportionality
Disproportionality is what I term the "Gault dilennna" of juvenile justice. In most states, a juvenile can receive a disposition of commitment
----thaHs-significantly 10nger-thanthe.p:unishnJJ:nt.he WQuld. receive if he was an adult convicted of the same offense. I term this the "Gault dilemma" because this principle of "dispropOltionality fu the name of rehabilitation" is best illustrated by the Gault case itself."7 Remember that in Gault-the seminal Supreme Court case dealing with due process in juvenile justicethe respondent (Gerald Gault) was committed for making a prank phone call to a neighbor.
198 In reality, the evidence against Gault was quite limited. At best, it appears that he was an accomplice to this crime.
199 For his fufraction, Gault was committed to the Arizona Industrial School for an fudeterrninate period, not to exceed his twenty-first birthday.
200
An adult convicted of the same offense could receive at most a jail term of two months.z° l While the Supreme Court pofuted to the seemingly draconian sentence as a reason to afford juveniles such as Gault basic due process rights, the Court did not, and has never sfuce, ruled that the possibility of a disproportionate sentence is constitutionally fatal to the juvenile justice system.
202
A juvenile can be convicted of a relatively minor offense, but because of a mental illness, disruptive home life, lack of educational progress, or any number of other "social factors," the circumstances may warrant an out-of-home placement for his rehabilitation. Most commitment facilities being more like prisons than hospitals, he could in reality find himself receiving a greater "punishment" than an adult counterpart. In essence, the offense that brings a juvenile to the attention of the family court is less important than his social history and present circumstances in the areas of family, education, mental illness, and connnunity behavior.
It is like going to the hospital for the sniffles but having to be admitted because the sniffles
197. In 1"e
198. Id
Gault, 387 U.S. 1 (1967).
at 4.
199. Id.
200.
Id.
at 61.
201. Id.
at 9.
202. See Ross, supra note 10, at 1037.

2004] Substantive Limitations 121 are really a symptom of a larger and more serious problem, pneumonia. A relatively simple malady brings you to the hospital, but a deeper problem makes you stay.
This is not to say that disproportionality is necessarily bad or unjust.
Disproportionality can, and should, result so long as the purpose of the system is something other than mere punishment.203 Rehabilitation of the juvenile and protection of the community may require considerations other than strict proportionality.
Disproportionality in the juvenile system is a dilemma because it demonstrates a tension inherent in juvenile justice that must be wrestled with by juvenile court judges.
If rehabilitation of 'the juvenile and protection of the community are the goals of the process, then the mechanism by which the youth appears before the court is largely irrelevant. Yet, judges must wrestle with the reality that many juvenile dispositions, including commitment, are in fact punishments.
In the adult criminal justice system, it is fundamental that punishment should be proportional to the offense,z°4 But where, as with juveniles, the purpose is something other than plmishment, the needs of the defendant and community become prominent.
(In many states, rehabilitation through the
"best interests of the child" standard is the only need or purpose of the system.20;) Here, the juvenile justice system operates much like the mental health commitment process.
A person who is dangerous to himself or others might come to the attention ofthe police because of panhandling on the subway. Yet that crime may trigger a series of events that lead to the person's confinement for a significant period of time. The police, in the process of writing the man a ticket, may say something that triggers a psychotic episode, leading the man to talk of hearing voices that tell him to kill others. The police take the man into custody and begin the process of civil commitment which could result in the man being "hospitalized,,206 for years.207
- 20:r.-gee-ttz!flrPart III.D. We would never argue, I think, that a person committed to a mental institution because he is a danger to himself or others should be prematurely released simply because the offense that broUght him to the attention of the police (e.g.,. disorrle.rly
conduct) was relatively minor.
4
204. See Cesare Beccaria, On Crimes and Punishments, in ON CRllvIES AND
PuNISHMENTS AND OTHER WRlTINGS 1, 19·21 trans., Cambridge Univ. Press 199,5) (1764)
(Richard Bellamy et al. eds., Richard Davies
Uustice requires that a sentence be proportional to the offense committed).
205. See Mills, supra note 189, at 911.
206. I put "hospitalized" in quotes to illustrate that many psychiatric hospitals are in reality very prison-like, just like juvenile commitment facilities. I have had the (mis)fortune to visit-as a guest, not a patient-a variety of mental health facilities. While the treatment of the mentally ill has come a long way in the last few decades, visits to these fucilities

122 Syracuse Law Review [Vol. 55:87
In the previous section, the "Gault dilemma" is best illustrated by
Mark. He is a juvenile who on the outside appears to have only minor
(misdemeanor) problems with the law.
It is only when the focus of the juvenile court is directed to him that the more serious issues of truancy and gang participation can be seen.
With this background, I fail to see why some states do not trust family court judges to resolve the "Gault dilemma" on a case-by-case basis, taking into account the particular characteri~tic of an offender and his or her social history. Family courts typically make tough decisions like these in other types of cases.
208
Yet, somestates prejudg~ these cases-sometimes to the detriment of the juvenile and/or the community.209 -ThesecasesceifuiiJly can be decided on a case-by-case basis, and could even be subject to appellate review, as I demonstrate in Part IV.
Since Gault, family court judges have become better educated and better trained. Today; most family court judges are lawyers. There is now a National Council of Juvenile and Family Court Judges, a section of the
American Bar Association devoted to juvenile justice, and countless children's advocacy groups. As a result of the Gault decision, there has been a right to counsel in juvenile cases for decades.210
A grossly disproportional sentence like that in Gault is much less likely where there is an effective advocate for the child-respondent to point out the "Gault dilemma" in that particuIar case.
The Gault case and cases like it are examples of abuse of the power of the judicial office.
It shows what can happen when unfettered juvenile discretion is poorly exercised.
It should not be an indictment of the entire juvenile justice system or a reason to take away necessary dispositional discretion, particularly where in the borderline cases it will do a great deal of harm to the juvenile and the community.
Legislative limitations on juvenile commitment might be justifiable if a given state has uneducated and unfair judges with little common sense and has completely incompetent defense attorneys.211 With such an unjust convinced me that we can do more to improve the conditions of the sickest of our fellow citizens.
207. See infra Part I1I.D.
208. See Buckingham, supra note 195, at 692.
209. See infra Parts liLA-B.
210. However, there is some authority to suggest that heavy case loads, inadequate pay, and other factors are overburdening juvenile defenders in sonte jurisdictions, preventing them from being effective advocates for their clients. See A CALL FOR JUSTICE, supra note 75, at 25.
211. Another situation in which limited discretion would be appropriate is a state with a purely punitive juvenile justice system. To be clear, I fully support the use of sentencing

2004] Substantive Limitations 123 system, there is an obvious potential for abuse of discretion and for cases like Gault to repeat themselves.
Given the professionalization of the family court bench and bar, 1 suggest that this situation is not likely to be present today. In addition, the proposal 1 make in Part IV of this article should ensure that abuses of the "Gault dilemma" do not occur.
2. Cost
It is expensive to keep a juvenile locked up in a commitment facility.
It costs thousands of dollars per year to provide housing, medical care, food, security, and education for a committed youth.
212 In an age of budget deficits and state debt, it can be difficult to justifY to the average taxpayer the necessity of spending so much money on a delinquent child. "Lock
'em up and throwaway the key" is an expensive proposition. If we vest juvenile court judges with the power to commit delinquent youth, then we are also vesting them with the power to spend great sums of taxpayers' dollars.
To an extent, it could be argued that money should not be a factor in deciding whether a child should be committed. Like a patient who needs medical care but cannot afford it, juvenile commitment should occur when the needs of the child for rehabilitation (or the community for 'protection) require it.
Yet the political reality of the criminal and juvenile justice systems is that someone needs to worry about the burgeoning costs of guidelines and other measures to ensure unifonnity
Fairness dictates that offenders in the adult criminal justice system.
who choose to commit the same crime should receive, roughly, the same punishment. Besides equality, this also promotes general deterrence. The difference between the adult and juvenile systems exists, however, in the purpose of the two systems.
The modern adult criminal. justice system is premised on punishment
Accordingly, ,adult sentencing is not individualized, particularly in the federal system. -Even in states with "punitive" juvenile justice systems, however, the purpose is still to fix the offender. Where states differ is in the mechanism (rehabilitation versus pooishrnent) they use to cure the offender's delinquency.
I am aware of no state which, has completely abandoned the medical (rehabilitative) model of disposition.
Even in states where accountability or-punishment is a principal goal of the system,jt is never the only goal. Part of the problem, some have argued, is that even "punitive" states have sent mixed messages in their legislative intent clauses. See, e.g., Feld, Transjol'mation, supra hote 189, at 691.
Intent clauses force family courts to engage in a very delicate juggling act: balancing the juvenile's need for rehabilitation with the community's need for protection. I do not see a contradiction in supporting a uniform sentencing scheme for adults and a discretionary one for juveniles, provided the latter has as its purpose or mission to fIx a problem
(delinquency), either through rehabilitation and/or punishment. A state which decides, as a matter of policy, that juveniles Who commit a certain crime should receive a particular range of punishments are, in effect, deciding not to have a juvenile justice system at all. In my view, the hallmark of the juvenile justice system is its individualized nature: whether to fix a particular juvenile or to fix a particular crime-creating problem in the community.
212 See generally Gatewood, supra note 4, at 659,
\,
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124 Syracuse Law Review [Vol. 55:87 incarcerating people. Unlike the federal government, most states do not have the ability to run up deficits. Budgets must be balanced.
Judges are less likely to be concerned with commitment budgets than legislators or state juvenile commitment agencies. A judge is faced with a juvenile with needs and problems. At the end of the day, the needs of the juvenile and the protection of the co~unity are paramount. Still, it is not unreasonable to have judges consider, as a factor, whether it is worth spending significant taxpayer dollftrs to commit a particular juvenile, as I propose in Part IV.
_ _"-,State .legislatoILObviollsJy__ want. their cOITlJJ11l1lities protected and juvenile delinquents rehabilitated. They should trust the now-educated and trained juvenile court judges
properly weigh the competing interests involved in deciding whether to commit a juvenile to state custody.
There are other protections that can help ensure that some judges do not overburden the· state's commitment budget. First, states can select (or elect) judges who are not going
commit unnecessarily.
Second, commitment agencies can provide feedback to judges who are "overcOlmnitting." Third, many states already provide that the commitment agency decides the placement and duration for a particular cOlmnitment.
If a judge is unnecessarily committing less serious offenders and the commitment agency determines there is no need for high-level incarceration, that juvenile could be placed in a minimum security (i.e., cheaper) facility for a shorter duration. Or, the juvenile could be quickly placed in a halfway house or residential placement with an eye towards quick reintegration into the community.· Already, many states use discretionary guidelines for determining a juvenile's "length of stay" in an indeterminate commitment, which often takes into account the offense which brought the juvenile to the attention of the court and the agency.213
D. Indeterminate Confinement Has Precedent in the Adult Criminal
Justice System and in Mental Health Commitment Proceedings
Indetenninate commitment in the juvenile justice system is akin to a parole-based sentencing scheme in the adult criminal justice system. In states that still retain parole,214 the parole board has discretion as to when a
213. See, e.g., Virginia Department of Juvenile Justice, Procedure 19-003: Length of
Stay for Indeterminately Committed JuvenileS (on file with author).
214. Many jurisdictions, including the federal system, have eliminated parole.
See
Bernard E. Harcourt, From the Ne'er-Do-Well to the Criminal Hisf01Y Category: The
Refinement afthe Actuarial Model in Criminal Law, 66 LAW & CONTEMP. PROBS. 99, 105
(2003).

2004] Substantive Limitations 125 prisoner is ultimately released.2l5 In some jurisdictions, a prisoner might only serve a fraction of his or her judge-pronounced sentence.216 While the sentencing court may set the upper boundary of the confinement period, the parole board has the authority to release the prisoner earlier based on considerations such as the imnate's rehabilitation and whether further prograrmning can more effectively occur in the community.2l7
Parole is constitutional because nothing in the Constitution prohibits a state from conditionally discharging an inmate prior to the completion of his court-ordered term of confinement.
218
A state need not establish .
specific criteria for the release of imnates on parole.219
It is sufficient for a state to have general criteria for parole eligibility.220
Indeterminate commitment is nothing more than the application of a parole-style system of conditional release to the juvenile justice system.
221
A judge or the state legislature sets the upper-level limit of confinement, expressed in either actual years or the age of the child, but ultimately the agency determines when the goals of incarceration have been satisfied.'22
However, this is not to say that the agency may act arbitrarily and capriciously.223
Juvenile commitment is also similar to the mechanism employed to rehabilitate mentally ill persons who are a danger to themselves or others.224 "Mental health commitments" are often for indefmite periods of time.
225 Once the individual is sufficiently healed so that he is no longer a
215. See, e.g., TEX. GOV'T CODE ANN. § 508.44I(a)(I) (Vernon 2002 & Supp.
2003)
(Board of Parole "shall determine ~ .. which inmates are _to.- be release.d
on parole or mandatory supervision.").
216. See Richard S. Frase, Is Guided Discretion Sufficient? Overview of State
Sentencing Guidelines, 44 ST. LOUIS U. LJ. 425, 431 (2000).
217. See id.
218. Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. I, 7 (1979)
- ("There-Is no constituti6:nalor inherent right of a convicted person to be conditionally released before the expiration ofa valid sentence.").
219. ld.
at 7-8.
220. ld.
221. In fact, at least one jurisdiction refers to release from indeterminate commitment as "parole." See, e.g., VA. CODE ANN.
§
222. Greenholtz, 442 U.s. at 12-13.
16.1-291 (Michie 2003 & Supp.
2004).
223. ld.
at 15-16.
224. See, e.g., D.C. CODE ANN. § 21-544 (2001 & Supp.
2004).
225. See id.
§ 21-546.
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126 Syracuse Law Review [Vol. 55:87 danger to himself or others, he is released back into the community.2
z6 commitment of the severely mentally ill is constitntional.
227
The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.
228
The
A mentally ill person who is dangerous to himself or others should not-and hopefully would not-be released simply because a set period of time has expired. Mental health~o=iiments ar~indeterrninate~in nature.
because the length of time needed to rehabilitate cannot be accurately predicted in advance. Some people require more or less time to be treated.
If a jurisdiction's juvenile justice system is to be individualized to provide rehabilitation, then the treatment providers should have some flexibility to determine when the child is sufficiently "fixed" that he can be released back into the community.
IV. SUFFICIENT STATUTORY PROTECTIONS CAN BE IMPLEMENTED TO
GUARD AGAINST DISPROPORTIONATE SENTENCES
If strict limitations on commitment are troublesome, but unchecked discretion can pose problems too, then perhaps a middle-ground can be reached, which provides for sufficient flexibility while protecting against disproportionality. Instead of rigid limitations, legislatures should provide a list of factors courts should apply before deciding whether juveniles should be committed to state custody. Statntory limitations cause problems in the grey areas, especially for the youth who fall outside the heartland of cases that were anticipated by the legislature. A standard, coupled with factors to be considered (on the record) by a court, teamed with appellate review, should provide sufficient protections against abuse of the Gault dilemma and breaking the state's budget.
The sample, model statnte provided in the Appendix attempts to resolve the competing interests involved in this debate. In sum, it provides:
(1) for a predisposition report, prepared by a probation officer in every case, to ensure that the court receives a full background report on the juvenile; (2) a variety of dispositional alternatives (of course more are
226. See id.
§ 21-546(a)(2) ("[O]rder the committed person's immediate release from the conunitment if the person is no longer mentally ill to the extent that the person is likely to injure himself or other persons if not committed.").
227. Addington v. Texas, 441 U.S. 418, 432-33 (1979).
228. !d. at 426.
_

2004] Substantive Limitations 127 possible and, in fact, already exist in many states); (3) a standard by which the family court should make its decision (either rehabilitation and/or protection of the community); (4) a set of factors to be applied by the court when entering a dispositional order that provides for commitment; and (5) a review mechanism
A. Disposition Statutes Should Provide Standards
In order to avoid grossly disproportionate sentences and budget overruns, statutes should provide standards that can be applied by family court judges. Standards retain the flexibility required to dispose of cases on an individual basis, but provide signposts by which judges can make their decisions.
In this way, a legislature can still aim for some sense of order and uniformity. Nevertheless, standards should be sufficiently amorphous to allow some room for case-by-case application.
I propose the adoption of one of three standards. These mirror the purpose clauses in many juvenile statutes.'29 One provides that a disposition must be in the best interests of the child. Another provides that the court should only consider the protection of the community. A third attempts to reconcile the two preceding standards, having a court consider both the child's best interests and community protection standards.
B. Disposition Statutes Should Provide Factors To Be Applied Before a
Juvenile Can Be Committed
Instead ofrigid limitations, legislatures should provide a list of factors courts should apply before deciding whether juveniles should be committed to state custody.
In the model statute, I indicated that a court should consider: (1) the seriousness of the offense; (2) the juvenile's delinquency history; (3) whether the juvenile is amenable to community-based treatment; (4) the backgrmmd and needs of the juvenile; (5) the availability of community-based placements, such as with family; (6) a victim impact
_ .statement; an_d (7) cost. These factors, like the standard, are flexible and can meet the needs of individual cases, yet they provide some degree of guidance to the family court.
I would require that fuspositions ordering commitment be on the record and contain an explanation, by the judge, how the statutory factors and standard were considered and applied.
This serves two purposes.
'\
First, it forces the court to articulate the reasons for its decision, making it more difficult for a grossly disproportionate commitment to be entered.
229. See Feld, Transformation, supra note 189, at 691.
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128 Syracuse Law Review [Vol. 55:87
Instead of checking a box on an order, the judge has to explain his rationale. Second, it provides the foundation for review, as discussed in the next subsection.
C.
Dispositions Should Be Subject to Appellate Review
A central concern about abuse of the Gault dilenuna is that a malevolent judge may take it upon himself to be overly harsh and a juvenile (and his attorney) will be unable to do anything to rebut this abuse of discretion.
For this reason, I propose that juvenile dispositions be reviewable under the "abuse of discre:timl"_iitandard.
_
"Abuse of discretion" is, indeed, a tough standard to get a reversal under-as it should be.
230
Juvenile dispositions, lilce many other decisions of family courts, are fact-intensive inquiries and judges should be given deference when they make such decisions. Yet, "abuse of discretion" is not a totally deferential standard.
231
Thus, it provides some protection against a malevolent trial judge who makes an erroneous and harsh decision. Since time is of the essence, juveniles who are appealing their dispositions should be given the option of seeking expedited review.
CONCLUSION
Juvenile commitment is a serious weapon in a family court judge's dispositional arsenal. Conunitment deprives a child of his freedom to live in the conununity with his family and friends. Many connnitment facilities are punitive in nature; despite the euphemistic name "commitment," many such placements have barbed wire, armed guards, and all of the other hallmarks of adult prisons. Yet, it is clear that many people believe that connnitment is a necessary disposition for youth who commit violent crimes and have a history of unsuccessful interventions at the local, conununity level. Commitment is most likely here to stay for a while.
This is not to say that commitment facilities are in the best interests of the children who reside there or the conununities to which these offenders are eventually released back. The purpose of this article has not been to
230. See Richards v. Aramark Services, Inc., 108 F.3d 925, 927 (8th Cir. 1997)
("Abuse of discretion will be found only when the trial court's decision is based on an erroneous view of the law or a clearly erroneous assessment of the evidence."); Kern v.
TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984) (abuse of discretion occurs "when a relevant factor that should have been given _significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, cOlmnits a clear elTor ofjudgment.").
231. Richards, 108 F.3d at 927.

2004] Substantive Limitations 129 take a side on this very disputed topfc. The concern here has been whether we should trust family court judges to make the very difficult decision to commit a child to state custody or not.
When to allow commitment is a decision best left to family court judges, subject to some appellate review.
Legislatures should not place limitations on commitment authority by prejudging the types of cases that are commitment-worthy.
Such limitations may be acceptable for the heartland of cases. However, there can be other cases-in the grey areawhere commitment is necessary.
Ultimately, the legal system must trust its judges. Family comt judges are particularly well suited to make the fact-intensive inquiries in juvenile dispositions. Providing standards and factors to juvenile judges, along with limited appellate review, will ensure that commitment will only be used for the cases that deserve such a severe sanction.
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