What rights were afforded probationers after the gagnon case

Case Summary 1. Use your text and the internet to research the case of Gagnon v. Scarpelli. In a narrative format of 500 or more words, outline the case. Give the facts, issue, and court holding.

2. What rights were afforded probationers after the Gagnon case?

Case Analysis 3. Discuss due process, beyond a reasonable doubt and preponderance of the evidence as they relate to the Gagnon case.

Executive Decisions 4. Consider you are a sitting Judge. Discuss and outline the differences between a Gagnon I hearing and a Gagnon II hearing.

Corrections in the Community.

© 2011, Elsevier Inc. All rights reserved. 117

C h a p t e r 5

When we are out of sympathy with the young, then I think our work in the world is over.

—George MacDonald

the Juvenile Crime problem The challenge of crime in the United States remains a major social problem that has serious and sometimes deadly consequences; however, in the past half-decade, the size of the problem has abated as the nature of crime has changed. For example, the Federal Bureau of Investigation reports that the crime rate has continued to decreased between 1998 and 2008 (Federal Bureau of Investigation, 2009)(see Figure 5.1).

The juvenile crime rate is considered a problematic aspect of the crime problem. Youths under age 18 now commit almost one in six of the most serious crimes in the nation and account for nearly one-half of the arrests for arson and about one-quarter of the arrests for robbery, burglary, lar- ceny-theft, motor-vehicle theft, and property crimes (see Figure 5.2). Once arrested, many youths are then processed through the juvenile justice system.

Juveniles and Community Corrections

accountability

decarceration

deinstitutionalization

diversion

drug courts

Fourteenth

Amendment

juvenile court

parens patriae

selective incapacitation

status offender

waiver

Key terms

F O S T E R , C E D R I C 1 6 9 2 T S

C h a p t e r 5 : Juveniles and Community Corrections118

0 10 20 30 40 50

Property crimes

Violent crimes

All arrests

Murder

Aggravated assault

Forcible rape

Robbery

Larceny-theft

Burglary

Motor Vehicle Theft

Arson

Figure 5.2 Of total arrest in 2008, percent of arrests for juveniles. Source: Federal Bureau of Investigation (2009).

Figure 5.1 Crime index in the United States, 1998–2008. Source: Federal Bureau of Investigation (2009).

0

1

2

3

4

5

6

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Crime Index Rate per 100,000

Thousands

F O S T E R , C E D R I C 1 6 9 2 T S

The Juvenile Crime Problem 119

However, when arrests for juveniles are compared to those for adults over the last 20 years, the percentage of crimes committed by juveniles has been declining (see Table 5.1).

Much of the juvenile crime in the 1980s and early 1990s was due to the emer- gence of crack cocaine, juvenile gangs, and violence as major aspects of gang culture (Allen & Simonsen, 2001). These crime issues and changes caused the society as a whole to rethink rehabilitation, to advocate “get tough” approaches, to waiver in their acceptance of juvenile courts, and to bind juveniles over for trial in adult courts. Fortunately, most juvenile offenders who come to the attention of the juvenile court will receive treatment and noncustodial dispo- sitions. As was the case with adult offenders, the development of community corrections has led to probation, currently the most frequently used disposi- tion for juvenile offenders.

Probation for juvenile offenders is defined as a legal status created by a court of juvenile jurisdiction. It usually involves (President’s Commission, 1967:130):

1. A judicial finding that the behavior of the child has been such to bring him within the purview of the court

2. The imposition of conditions upon his continued freedom 3. The provision of means for helping him meet those conditions and

for determining the degree to which he meets them

table 5.1 Percentage of Juvenile Arrests (under 18) among All Arrests, 2000, 2004, and 2008

Offense 2000 2004 2008

Total 17 15 15

Murder 9 8 10

Forcible rape 16 17 15

Robbery 25 22 27

Aggravated assault 14 14 13

Burglary 33 28 27

Larceny-theft 31 28 26

Motor vehicle theft 34 26 25

Arson 53 52 47

Violent crimes 16 15 16

Property crimes 32 28 26

Source: Federal Bureau of Investigation (2009).

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Probation thus implies more than indiscriminately giving the child “another chance.” Its central thrust is to give him or her positive assistance in adjustment in the free community.

historiCal baCKground The historical precursors of juvenile probation are as generally outlined earlier. The legal underpinnings of modern juvenile probation were estab- lished in England during the early Middle Ages, under the principle of parens patriae: “The King, being father of His country, must protect the welfare of the children.”

As with adult probation, John Augustus is viewed as the “father of juvenile probation,” as many of his charges were female juveniles in trouble with the law. His work contributed to development of the first visiting probation agent systems in Massachusetts (1869) and passage of the first enabling legislation establishing probation for juveniles (1878). In the same era, the Society for the Prevention of Cruelty to Children (1875) was established. Their proposed pol- icies and activism contributed directly to the first juvenile court in America spe- cifically set up to address the care, treatment, and welfare of juvenile offenders: the Cook County (Chicago), Illinois, juvenile court in 1899.

The Cook County juvenile court emerged from the concerns of a group of compassionate, humanitarian, and wealthy women in Chicago who wished each child to receive the care, custody, and treatment as their natural par- ents should have provided (Lindner & Savarese, 1984). The juvenile court was one project devised to attain these objectives1 and utilized individual- ized treatment based on extensive diagnosis of the child’s personality and needs, with the judge serving as a counselor to the patient (juvenile). It was

Juvenile probation is the oldest and most widely used vehicle through which a range of court- ordered services is rendered. Probation may be used at the “front end” of the juvenile justice system for first-time, low-risk offenders or at the “back end” as an alternative to institutional confinement for more serious offenders. In some cases, probation may be voluntary, in which the youth agrees to comply with a period of informal probation in lieu of formal adjudication. More often, once adjudicated and formally ordered to a term of probation, the juvenile must submit to the probation conditions established by the court.

box 5.1 Juvenile probation

Source: Office of Juvenile Justice and Delinquency Prevention (1996).

1Chicago courts continue to innovate to handle juvenile offenders. See U.S. Bureau of Justice Statistics (1994). For a critical view of the Illinois juvenile justice system, see Berger (1994). See also Geties (2000).

F O S T E R , C E D R I C 1 6 9 2 T S

Historical Background 121

widely argued that the juvenile court would safeguard presumed supercon- stitutional rights2 (the child would receive more than his or her just deserts) and avoid the stigma of criminal conviction through informal court proceed- ings based on benevolent attention, understanding the juvenile, humanitar- ian intervention, solicitous care, and regenerative and restorative3 treatment. To attain these objectives, procedural safeguards guaranteed under the U.S. Constitution were abandoned; the focus was on the child, not the deed. Box 5.2 contains three selected Amendments to the U.S. Constitution that pertain to rights guaranteed to adults.

Juvenile court proceedings were informal, conducted in the absence of legal counsel, closed to the public, and individualized to maximize guidance and outcome. To protect and serve the “best interests of the child,” records were confidential. Legal challenges were rare.

Juvenile courts were established quickly throughout the various states, federal government, and Puerto Rico. By 1927, all but two states had enacted enabling legislation establishing both juvenile court and proba- tion. The theoretical assumption of juvenile probation was that provid- ing guidance, counseling, resources, and supervision would assist low-risk juveniles to adapt to constructive living, thus avoiding the necessity of institutionalization.

2Critics argue that this has not happened. See Feld (1993); and Getis (2000). 3Umbreit (1994) See also Umbreit (1995); and Umbreit and Vos (2000).

Fourth amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describ- ing the place to be searched, and the person or things to be seized.

Fifth amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment of a Grand Jury, except in cases arising in land or naval forces, or the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor to be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

sixth amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state or district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and the cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

box 5.2 seleCted amendments to the u.s. Constitution

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The primary goals of probation became to assist juveniles in dealing with their individual problems and social environments. Resolving underlying causes of the youthful offenders would permit their reintegration into the community. It was argued that probation, rather than incarceration, should be the disposi- tion of choice, because

1. Probation provides for community safety while permitting the youthful offender to remain in the community for reintegration purposes.

2. Institutionalization leads to prisonization, the process of learning the norm, and culture of institutional living (Clemmer, 1940). This decreases the ability of the juvenile to function as a law-abiding citizen when released, thus leading to further involvement as an adult offender.4

3. The stigma of incarceration is avoided (Schur, 1971). 4. The negative labeling effects of being treated as a criminal are avoided. 5. Reintegration is more likely if existing community resources are used

and the youth continues to engage in social and familial support systems (family, school, peers, extracurricular activities, employment, friends, etc.).

6. Probation is less expensive than incarceration, arguably more humanitarian, and is at least as effective in reducing further delinquent behavior as is institutionalization.5

The “child saving movement” underlying the development of the juvenile court is clearly seen here.6

the legal rights oF Juveniles It is obvious that the juvenile court, as it developed over the twentieth cen- tury, addressed juvenile offenders under civil rather than criminal procedures (civil suits deal with individual wrongs, whereas criminal prosecutions involve public wrongs). The most important objective of the original creators of the juvenile court was to create a separate court system for delinquent, dependent,

4The perceived relationship between juvenile delinquency and adult criminality has been seriously challenged by recent research. Arguing that evidence is not sufficient to establish accurate predictions about whether juvenile delinquents would eventually become adult offenders, Lyle Shannon also found that the relationship that does exist can, in large part, be explained by the effects of processes within the juvenile and criminal justice systems, as well as the continued delinquent behavior of the juvenile. See Shannon (1982). 5See Solomon and Klein (1983). 6Not all scholars agree that the moving force behind early juvenile court development was benevolent. For example, A.M. Platt believes that the rationale for saving youths was part of a larger social movement that attempted to strengthen the position of corporate capitalism in the United States. He argues that the juvenile court was a means of preserving the existing class system. See Platt (1977).

F O S T E R , C E D R I C 1 6 9 2 T S

The Legal Rights of Juveniles 123

and neglected children. Following the doctrine of parens patriae, the juvenile court system suspended or ignored the legal rights constitutionally guaran- teed to all citizens: the right to trial and against self-incrimination and other rights. Constitutional rights were thought unnecessary for juveniles, as the court would focus on and uphold the best interests of a child in a civil setting. Many juvenile judges and child advocates perceived inequity and attempted to provide constitutional safeguards. Beginning in the 1960s, questions about juvenile court proceeding fairness and the constitutionally guaranteed rights of juveniles were brought to the U.S. Supreme Court. Significant changes were made. It is necessary to review those decisions to comprehend their impact on the juvenile justice system, especially contemporary juvenile probation.

Kent v. United States

In 1966, the U.S. Supreme Court was asked to consider the issue of the transfer (“waiver”) of a juvenile to the criminal court system.7 The issue was the legis- lative waiver of the juvenile court procedures (Grisso & Schwartz, 2000). The court stated:

There is much evidence that some juvenile courts . . . lack the personnel, facilities, and the techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that here may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children (Kent v. United States, 1966).

This case portended more important issues on which the court was asked to rule (Merlo, Benekos, & Cook, 1997).

In re Gault

In 1967, the court decided its first major issue in the area of juvenile court pro- cedures. In Arizona, Gerald Gault, then age 16, allegedly telephoned a neighbor woman and used obscene phrases and words. The use of such language over the telephone violated an Arizona statute. Gerald Gault was subsequently adjudicated a juvenile delinquent after a proceeding in which he was denied basic procedural safeguards otherwise guaranteed to any adult. This landmark decision8 categorically granted the following to all juveniles charged with delinquent acts that might result in such grievous harm as commitment to a correctional institution:

7Lee (1994). See also Jenson and Metzger (1994); and Merlo et al. (1997). 8In re Gault, 387 U.S. 1 (1967). See also Sanborn (1994b); and Manfredi (1998).

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1. Right to know the nature of the charges against them, to prepare for trial

2. Right to counsel 3. Right against self-incrimination 4. Right to confront and cross-examine accusers and witnesses

The Gault decision not only returned procedural rights to juveniles, it also ended the presumption that juvenile courts were beyond the purview and scope of due process protections (Sanborn, 1994a).9

In re Winship

This 1970 decision further defined the rights of juveniles. Proof used in a court finding of delinquency must show “beyond a reasonable doubt” that the juve- nile committed the alleged delinquent act (Sanborn, 1994b), the same proof standard used for adults in criminal trials. The court specifically found unper- suasive the argument that juvenile proceedings were noncriminal and intended to benefit the child (In re Winship, 1970).10 Currently, juveniles in juvenile court do not have the constitutional right to trial by jury (McKeiver v. Pennsylvania, 1971), although some states have extended this right to juveniles.

These three major decisions by the U.S. Supreme Court created the due process model for the juvenile court. The McKeiver decision seemed to indicate that the court was moving away from increased rights for juveniles, but in 1975 the court ruled in Breed v. Jones that once tried as a juvenile, a person cannot be tried as an adult on the same charges.11 In 1979 (Fare v. Michael C.), the court ruled on interrogation and indicated that a child cannot voluntarily waive his or her privilege against self-incrimination without first speaking to his or her parents and without first consulting an attorney.12 In 1984, the court distinctly departed from the trend toward increased juvenile rights by reaffirming parens patriae (Schall v. Martin, 1984). As Allen and Simonsen (1998:643) note:

As a result of Supreme Court cases, the juvenile court is now basically a court of law. . . .

9See also Sanborn (1994a); and Feld (1999). 10Historical data identifying main sources of the growth of juvenile prosecutions in London Court (1790-1820) can be found in King and Noel (1994). 11This would be a grievous case of double jeopardy. See also Sanborn (1994a). 12In Fare v. Michael C. (1979), a juvenile murder suspect consented to interrogation after he was denied the opportunity to consult with his probation officer. The U.S. Supreme Court ruled that there is no constitutional mandate to allow a suspect to speak with his or her probation officer. The court indicated that the trial court judge should take into consideration the totality of the circumstances of the youth’s waiver of his or her rights. Factors such as age, maturity, intelligence, and experience should be taken into consideration.

F O S T E R , C E D R I C 1 6 9 2 T S

The Legal Rights of Juveniles 125

Thus far, the procedural rights guaranteed to a juvenile in court proceedings are as follows:

1. The right to adequate notice of charges against him or her; 2. The right to counsel and to have counsel provided if the child is indigent; 3. The right of confrontation and cross-examination of witnesses; 4. The right to refuse to do anything that would be self-incriminatory; 5. The right to a judicial hearing, with counsel, prior to transfer of a

juvenile to an adult court; and 6. The right to be considered innocent until proven guilty beyond a

reasonable doubt.

Juvenile probation, as seen in court proceedings and used in juvenile courts, is currently vacillating between these two models (Rogers & Mays, 1987). On the one hand, we see liberal reformers who call for increased procedural and legal safeguards for juveniles; on the other hand, we have a conservative movement that focuses on the victim (Torbert, Gable, & Hurst, 1996) and seriousness of the crime (Clear & Cole, 1990).13 As one conservative put it, “You are just as dead if a 15-year-old shoots you as you are if a 25-year-old does.”14

13Berger (1994). Cohn is more pessimistic: Cohn (1994). 14See Sheley, McGee, Wright (1995). Bastian and Taylor (1994); and Rapp-Paglicci and Wodarski (2000).

F O S T E R , C E D R I C 1 6 9 2 T S

C h a p t e r 5 : Juveniles and Community Corrections126

CritiCisms oF the Juvenile Court and PARENS PATRIAE Criticisms of and disenchantment with the parens patriae juvenile court and its procedures (Moore & Wakeling, 1997) have been voiced by such groups as the American Bar Association, the judiciary, the federal government, practi- tioners, private nonprofit organizations, researchers, and voluntary organiza- tions, among others. Such efforts, when coupled with decisions by the U.S. Supreme Court, have created major changes in the juvenile justice system and particularly diversion of offenders, status offenders, decriminalization, and deinstitutionalization. We will see these changes as we review the contempo- rary juvenile justice system and juveniles in community corrections.

the Contemporary Juvenile JustiCe sCene Juvenile Court processing

Although there are some similarities between adult and juvenile systems, there are also some fundamental differences. Figure 5.3 shows a simplified ver- sion of case flow through the juvenile justice system. Figure 5.4 shows ages of juveniles upon referral to juvenile court. As has been the pattern for many decades, the highest rate was for 16 year olds, followed closely by 15 and then 17 year olds. Very few were under age 13.15 Figure 5.5 shows the referral

15Office of Juvenile Justice and Delinquency Prevention (1998).

Figure 5.3 The juvenile justice system flowchart. Source: Office of Juvenile Justice and Delinquency Prevention (2001).

Criminal justice systemDiversion

Statutory exclusionNon-law

enforcement services

Law enforcement

Diversion Detention

Diversion Dismissal

Prosecutorial discretion

Transfer to juvenile

court Judicial waiver

Prosecution Juvenile

court records

Informal processing/diversion

Formal processing

Adjudication Revocation

Revocation

Release

Aftercare

Residential placement

Probation or other non- residential disposition

F O S T E R , C E D R I C 1 6 9 2 T S

The Contemporary Juvenile Justice Scene 127

offense for males and female offenders in 2003. Between 1980 and 2007, the juvenile arrest rate for simple assaults increased dramatically for both males and females. In addition, between 1994 and 2007, juvenile arrests for drug abuse violations increased more for females than for males. In general, female involve- ment in the juvenile justice system continues on a steady course upward.

Figure 5.4 Age at referral to juvenile court, 2007. Source: Sickmund, Sladky, and Kang (2010).

0

100

200

300

400

500

<12 12 13 14 15 16 17

Number of youthThousands

Figure 5.5 Referral offense for males and females, 2007. Source: Sickmund et al. (2010).

0

100

200

300

400

500

Personal Property Drug Public Order

Male FemaleThousands

F O S T E R , C E D R I C 1 6 9 2 T S

C h a p t e r 5 : Juveniles and Community Corrections128

More than half of those arrested for running away from home were female16 (see Figure 5.6). Curfew violations and running away from home are viewed as status offenses that can only be committed by juveniles.

Juvenile court processing of delinquency cases can be handled in several ways. At intake, referred cases are often screened by an intake officer who might decide to dismiss the case for lack of legal sufficiency or to resolve the matter formally or informally. Informal dispositions could include a voluntary refer- ral to a social agency for services, informal probation, or payment of fines or restitution. Formally handled cases are petitioned to juvenile court and sched- uled to an adjudication (or waiver) hearing. Of those youths referred to juve- nile court in 2005, about 58 percent were counseled and then released. The remaining 42 percent were referred to juvenile court jurisdiction, and of those about one in 138 were waived to criminal or adult court.

A status offender is generally a juvenile who has come into contact with juvenile authorities based on conduct that is an offense only when committed by a juvenile. A status offense is conduct that would not be defined as a criminal act when committed by an adult (Maxson & Klein, 1997).

box 5.3 status oFFenders

Figure 5.6 Arrests for runaway: 1999 and 2008. Source: Federal Bureau of Investigation (2009).

0

20

40

60

Male Female

1999 2008Thousands

16Office of Juvenile Justice and Delinquency Prevention (1998).

F O S T E R , C E D R I C 1 6 9 2 T S

The Contemporary Juvenile Justice Scene 129

At the disposition hearing, the juvenile court judge determines the more appropriate sanction or set of sanctions, generally after reviewing a predis- position (“presentence”) report prepared by a probation department. Here the range of options available to the judge is wide and typically includes commitment to an institution, placement in a foster or group home or other residential facility, probation, referral to an outside agency, day treatment or attendance center, mental health program, community correctional cen- ter (halfway house), or imposition of a fine, restitution, or community ser- vice. As shown in Figure 5.7, probation is the sentence most often imposed. Probation services (for regular or intensive probation) must cope with heavy caseloads every year. For some youths, out-of-home placement can occur. Residential placement could be in a public or private facility, and Figure 5.8

There are an estimated 18,000 juvenile probation professionals impacting the lives of juveniles in the United States. Eighty-five percent of these professionals are involved in the delivery of basic intake, investigation, and supervision services at the line officer level; the remaining 15 percent are involved in the administration of probation offices or in the management of probation staff.

box 5.4 Juvenile probation oFFiCers

Source: Office of Juvenile Justice and Delinquency Prevention (1996).

Figure 5.7 Placement of juveniles, 1987–2007. Source: Livsey (2010).

0

100

19 87

200

300

400

500

600

700

800

N u

m b

e r

o f

ca se

s

Thousands

Probation

Other sanctions

Residential placement

19 92

20 02

19 97

20 07

F O S T E R , C E D R I C 1 6 9 2 T S

C h a p t e r 5 : Juveniles and Community Corrections130

provides details on juveniles in facilities intended to hold juvenile offenders. In 2007, there were more than 148,600 youths in residential facilities. Most of these juveniles resided in public facilities owned and operated exclusively by state or local governmental agencies. Private facilities are those owned and operated by various nongovernmental organizations that provide services to juvenile offenders. It should be noted that an out-of-home placement can be a very traumatic experience for a juvenile, and suicide is the most common cause of death for youths held in custody (see Figure 5.9).

Figure 5.8 Residential placement for juvenile offenders in 2006. Source: Sickmund, Sladky, and Kang (2008).

0

10

20

30

40

50

60

70

80

90

100

Public Private Total

Thousands

Figure 5.9 Cause of death for juveniles in custody in 2006. Source: Hockenberry, Sickmund, and Sladky (2009).

Suicide Accident Illness Homicide

Number 4 10 1 0

0

5

10

15

F O S T E R , C E D R I C 1 6 9 2 T S

The Contemporary Juvenile Justice Scene 131

Juveniles Waived to Criminal Court

All states set an upper age jurisdiction for juvenile courts, and it should be noted that all states have legal mechanisms that, under certain circumstances, permit youths to be tried in criminal court as if they were adults. These mechanisms were developed primarily in the last part of the twentieth century (Feld, 2001) and are major changes from previous philosophical bases of juvenile court proceedings.

Such changes were brought about in part by Kent v. United States, a case in which the U.S. Supreme Court began to require due process in juvenile waivers and lawmakers tried to construct simple and expedient alternatives to juvenile waiver hearings. Mechanisms included automatic exclusion based on specific age or offense criteria, authorization of prosecutors to direct-file juvenile cases in criminal court, or empowering judges to sentence directly to adult correc- tional institutions or blend dispositions by imposing a juvenile institutional commitment followed by commitment to adult criminal facilities (Ullman, 2000). These changes were fueled in part by alarm over an increase in juve- nile violence, an expanding caseload of juvenile drug offenders, and judicial assessments that many adjudicated delinquents were no longer amenable to treatment (Snyder, Sickmund, & Poe-Yamagata, 2000). In addition, offense exclusion provided a politically attractive strategy for “get tough” public offi- cials who proposed to “crack down” on increased youth crime. Figure 5.10 shows juveniles waived to criminal court from 1993 through 2007, the most

Figure 5.10 Number of juveniles waived to adult court, 1993–2007. Source: Sickmund et al. (2010).

0

2

4

6

8

10

12

14

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Thousands

F O S T E R , C E D R I C 1 6 9 2 T S

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recent available picture. Offenses for which waivers were sought included offenses against the person and property, drug law violations, and public order. Waivers have generally decreased since 1994, when they peaked.

Advocates of juvenile waiver mechanisms asserted that juvenile court sanctions and service constitute neither just nor effective responses to predatory and savvy youthful offenders and that criminal prosecution would ensure more proportionate punishment, more effective deterrence, and greater incapacita- tion. It was believed that by focusing on the offense rather than the offender, public safety would be strengthened and recidivism would be reduced. It was also believed that habitually violent juveniles belonging to gangs, abusing substances, and wielding guns should be arrested, charged as adults, and sen- tenced to prisons. In sum, authority was shifted from the judiciary to the pros- ecutor, although some states increased the authority of both. The correctional objective was selective incapacitation. It is important to note that the number of both juvenile arrests and cases waived to criminal court have declined since 1994 (Puzzanchera, 2010), reflecting the similar trend of decreasing involve- ment of juveniles in lives of crime and violence.

Studies of the effectiveness of waiver programs are ongoing. Risler, Sweatman, and Nackerud (1998) examined the impact of Georgia’s waiver legislation and found no significant reduction in the mean arrest rates (no deterrence) and sug- gested that such laws do not reduce serious violent crime. Redding (1999) argues that while juveniles are more likely to receive a longer and more serious sen- tence in criminal court, they may actually serve less time than they would in a juvenile facility. He found that criminal court adjudication generally produces

This doctrine of isolating the juvenile offender, or “social disablement,” proposes a policy of incarcerating those whose criminal behavior is so damaging or probable that nothing short of isolation will prevent recidivism. This “nothing-else-works” approach would require correctly identifying those offenders who would be eligible for long-term incarceration and diverting others into correctional alternatives. Thus, we would be able to make maximum effective use of detention cells, a scarce resource, to protect society from the depredations of such dangerous and repetitive offenders. Current correctional technology does not permit correctly identifying those who require inca- pacitation. Rather, the evidence is that we would probably incarcerate numerous nondanger- ous juveniles (a “false-positive” problem). However, there is evidence of effectiveness of some prediction scales to identify low-rate juvenile offenders for selective early release (Hayes & Geerken, 1997). This would be selective “decapacitation!” Whatever benefits might accrue to this sentencing doctrine have thus far eluded corrections.However, chronic repeat offenders (those with five or more arrests by age 18), who make up a very small proportion of all offenders, commit a very high proportion of all crimes. More research into correct classification of juvenile and adult offenders is needed.

box 5.5 seleCtive inCapaCitation

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higher recidivism rates for most offenders and that juveniles incarcerated in adult facilities receive fewer age-appropriate rehabilitative, medical, mental health, and educational services. Bishop (2000) reviewed the effects of juvenile waiver and concluded that expansive transfer policies send many minor and nonthreatening offenders to the adult system, exacerbate racial disparities (McNulty, 1996), and move youths with special and severe needs into correctional systems that are ill- prepared to provide treatment. Bishop also argued that creditable evidence shows that prosecution and punishment in the adult system increase recidivism and expose young people to heightened vulnerability and to potentially damaging experiences and penal outcomes. It will be interesting to observe additional out- come studies on judicial waiver legislation and practices.

Community Corrections

It should be obvious that the juvenile court makes decisions about youthful offenders based on assessments of needs, risks, and rehabilitation. Whether work- ing on an informal basis in the smallest juvenile court or using structured predic- tion and actuarial instruments that are combined with clinical experience, as in the most sophisticated and largest juvenile settings, the juvenile justice system is winnowing cases, attempting to match sanctions with needs and control. Allen and Simonsen (2001:95) refer to the process as “filtering” offenders into sanction options that address individual needs, community safety, and reintegration.

In the juvenile court, disposition decisions are based on individual and social factors, offense severity, and youths’ offense history. The dispositional philos- ophy includes a significant rehabilitation emphasis as well as many disposi- tional options that cover a wider range of community-based and residential services. Dispositional orders can be and often are directed to people other than the offender (family members, in particular), and dispositions may be indeterminate, based on progress toward correctional goals and treatment objectives. In some cases, authority of the juvenile court can extend to majority age (as defined by individual states).

As fascinating as “detention” and “incarceration” might be and are certainly nec- essary for some offender control, our focus here is on prevention, alternatives to incarceration, probation, and a variety of programs designed to divert juveniles from residential settings and provide treatment and control in the community.

Juvenile courts sometimes hold youths in secure detention facilities during court processing. The court may decide detention is necessary to protect the community from the juvenile’s behav- ior, ensure a juvenile’s appearance at subsequent court hearings, or secure the juvenile’s own safety. Detention may be also ordered for the purpose of evaluating the juvenile. About one in five of all delinquency cases are detained. Property offenders are least likely to involve detention.

box 5.6 detention

F O S T E R , C E D R I C 1 6 9 2 T S

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Juvenile probation

Probation is the oldest and most widely used community-based corrections program. During probation, the juvenile usually remains in the commu- nity and can continue such normal activities as attending school or work. In exchange for this freedom, the juvenile must comply with a number of condi- tions. This compliance could be voluntary as in informal probation in lieu of formal adjudication, but it may also be mandatory. If the disposition results from a formal adjudication and probation, the juvenile must comply with con- ditions of probation as imposed by the court. Slightly more than one-half of the juvenile probation dispositions are informal (enacted without formal court adjudication or court order).

A juvenile might be required to meet regularly with a probation officer or supervisor, attend counseling, observe a strict curfew schedule, and/or com- plete a specified period of community service or even restitution. Such orders also imply the authority of the court to revoke probation should the juvenile violate conditions. If there is a revocation hearing, the court may reconsider its original disposition, impose additional conditions, or impose such severe alternatives as placement in a state youth authority.

At juvenile probation intake, juveniles are frequently assigned to caseloads based on their identified “risks” and “needs.” High-risk youths who may be in danger of becoming chronic offenders may be assigned to special pro- grams with strict supervision and individually designed treatment programs, including involvement of the youths’ families in court-ordered activity (e.g., parenting classes). Treatment might also include counseling on alcohol and other drug abuse, mental health interventions, employment preparation and job placement, community service projects, and afternoon programs (see Box 5.7). Such programs seek to reduce the number of chronic recidivists through a coordinated program of aggressive early intervention and treatment.

The field of probation is staffed by dedicated individuals who believe that young persons who break the law can change their behavior in favor of law-abiding activities. Probation depart- ments cannot, however, limit their intake of probationers such as private providers or state training schools, which routinely operate over capacity and often have caps on admissions. In that sense, probation is the “catch basin” of the juvenile justice system and is being confronted with increasing and more dangerous caseloads.

Source: Office of Juvenile Justice and Delinquency Prevention (1996).

box 5.7 Challenges to probation

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Investigation and diagnosis of other juveniles, usually at the intake or predis- position report level, may suggest treatment needs for mental health care, drug- abusing behavior (of juveniles and their families), or other precipitating factors contributing to the acting-out behavior of juveniles before the court. Some are diverted from further court processing, and others are placed in residential facil- ities, frequently run by private-sector service providers. Probation officers are sometimes required to supervise these juveniles. We first examine diversion programs and then aftercare (“parole”) of juveniles exiting residential settings.

diversion of Juveniles

The Gault, Kent, and Winship cases defined those constitutionally guaranteed rights that must be accorded every juvenile and formed the basis of the due process model noted earlier. This model requires adherence to minimally guar- anteed legal procedures,17 a voluntary and helping relationship, and the least restrictive environment necessary to treat the juvenile. It also requires a dem- onstrated need for detention18 and, absent this, a mandatory noncommitment to an institution (del Carmen, 1984, 1998).

The question of whether incarcerated juveniles have a mandatory right to treat- ment has been addressed in several federal cases. The most significant of these was Nelson v. Heyne (1974), which upheld a categorical right to treatment for confined juveniles under the due process clause of the Fourteenth Amendment. The appellate court stated that the parens patriae principle of the juvenile court could be justified only if committed delinquent youth receive treatment:

. . . the right to treatment includes the right to minimum acceptable standards of care and treatment for juveniles and the right to individualized care and treatment. Because children differ in their needs for rehabilitation, individual need for treatment will differ. When a state assumes the place of a juvenile’s parents, it assumes as well the parental duties, and its treatments of its juveniles should, so far as can be reasonably required, be what proper parental care would provide. Without a program of individual treatment, the result may be that the juveniles will not be treated, but warehoused (Nelson v. Heyne).

Despite the implications of Nelson, a nationwide survey of state, local, and pri- vately run juvenile detention facilities found serious problem areas, ranging from inadequate living space and crowding to high numbers of injuries to con- fined juveniles through “alarmingly widespread” suicidal behavior.19

17Sanborn (1994a). 18Bazemore (1994). 19Abt Associates (1994).

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There appears to be no consensus on which youths are best served by resi- dential (vs. community) care, although one study found that very high-risk youths responded best to residential placement, whereas low- and moderate- risk youths were best served on probation (Lowenkamp & Latessa, 2005).

The due process model and the Nelson requirements have significantly con- tributed toward the diversion process of juveniles. Cost is another factor; the American Correctional Association (2001) reports the cost of one juvenile insti- tution as $34,600 and $110,200 for Minnesota and Pennsylvania, respectively. Allen, Latessa, Ponder, and Simonsen (2007:336–337) define diversion as

The official halting or suspension, at any legally prescribed processing point after a recorded justice system entry, of formal juvenile justice proceedings against an alleged offender, and referral of that person to a treatment or care program administered by a nonjustice agency or to a private agency. Sometimes no referral is given.

Diversion programs function to divert juveniles out of the juvenile justice sys- tem, encourage the use of existing correctional facilities and agencies for such offenders, and avoid formal contact with the juvenile court. These programs include remedial education programs,20 foster homes, group homes, commu- nity drug treatment,21 attendance centers,22 and local counseling facilities and centers. The effectiveness of such programs is not yet definitively documented but preliminary evaluation reports indicate high efficacy.

Drug Courts and Diversion

The predisposition report may have also discovered that youths, either status offenders or those who have committed offenses, are experimenting, abusing, or chemically dependent on controlled substances, pharmaceuticals prescribed for others but coming under the control of juveniles, or other illicit drugs. In an increasing number of jurisdictions, such youths are afforded access to individually tailored treatment programs under juvenile drug courts. There, a formidable array of specific services may be available and may address not only the juvenile but family, friends, and employers. Studies to date suggest that drug court participants have lower recidivism rates and are less likely than comparison groups to be arrested in any category of offense. Thus, drug courts not only reduce recidivism but also enhance public safety (see Latessa, Shaffer, & Lowenkamp, 2002; Koetzel-Shaffer, 2006).

20An example of this is Project READ, San Jose State University. 21Mauser, Van Stelle, and Paul Moberg (1994); and Sarre (1999). 22McDevitt, Domino, and Brown (1997).

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deinstitutionalization

The concept of deinstitutionalization, also known as decarceration, is recent; 1969 is considered its inception. In that year, Jerome Miller began deinstitu- tionalization of incarcerated juvenile offenders in Massachusetts. Asserting that the era of confinement of children in larger correctional facilities was over and that an era of more humane, decent, and community-based care for delinquents had begun, Miller closed the major juvenile institutions. Confined charges were placed in small homes, using other, already exist- ing community-based correctional programs and services (Sherrill, 1975a, 1975b).

Initial program evaluations found that the community-based juvenile group did worse in terms of recidivism (74% vs. 66%) than earlier juveniles23 processed through the correctional units (McCord & Sanchez, 1983). However, closer analysis of data revealed that when community-based programs were implemented prop- erly, recidivism rates were equal or slightly lower than the institutional group.

While no other state has fully followed Massachusetts’ lead, several have devel- oped smaller more community-based facilities. Utah, for instance, closed a 350-bed training school and placed the 290 youths in community-based programs modeled on Massachusetts’ program. Again, researchers concluded there was no evidence that public safety had been compromised. There was strong evidence that Utah saved considerable money when compared to past correctional practices (Krisberg, Austin, Joe, & Steele, 1987).

Source: National Drug Court Institute. www.ndci.org/courtfacts.htm

Juvenile drug courts are intensive treatment programs established within and supervised by juvenile courts to provide specialized services for eligible drug-involved youths and their fami- lies. Cases are assigned to a juvenile drug court docket based on criteria set by local officials to carry out the goals of the drug court program. Juvenile drug courts provide (1) intensive and continuous supervision over delinquency and status offense cases that involve substance-abusing juveniles and (2) coordinated and super- vised delivery of an array of support services necessary to address the problems that con- tribute to juvenile involvement in the justice system. Service areas include substance abuse treatment, mental health, primary care, family, and education. Since 1995, more than 140 juve- nile drug courts have been established in the United States, and more than 125 are currently being planned.

box 5.8 Juvenile drug Courts

23Similar finding emerged when Maryland’s Montrose Training School was closed. Gottfredson and Barton (1993).

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In 1995, Ohio began a program entitled RECLAIM Ohio (Reasoned and Equitable Community and Local Alternatives to Incarceration of Minors). This statewide initiative is designed to assist counties in providing commu- nity services to adjudicated juvenile offenders. Essentially, local juvenile courts are given an allocation of funds to use for community-based alternatives. In turn, they must pay for all youths who are incarcerated in a state institution from their allocation. Results indicated that they are successfully reducing the commitment rate of juveniles to state facilities. Figure 5.11 shows the num- ber of admissions to state facilities before and after the implementation of RECLAIM. As shown, there has been a significant reduction in commitments to state institutions within the Department of Youth Services. RECLAIM has also strengthened local juvenile courts; private-sector service providers increased their participation; and cooperation across prosecutor, court, and court services increased. Failure rates were not unusually high, and the percentage of youths

box 5.9 Costs and beneFits oF early Childhood intervention A series of small-scale programs attempted to assess the costs and benefits of early childhood (pre- natal through age 4) intervention, asking if early interventions targeted at disadvantaged children benefit participating children and their families, and might government funds invested early in the lives of children yield compensating decreases in later government expenditures?Peter Greenwood examined five of the most rigorously designed programs for younger children; programs had a matched control group that was assigned randomly at program onset. In particular, he found: n IQ differences between program participants and control group members approached or

exceeded 10 points at the end of the program. n The difference in rates of special education and grade retention at age 15 exceeded 20

percent (Abecedarian project). n Participating children experienced 33 percent fewer emergency room visits through age

four than children in the control group (Elmira, NY Prenatal/Early Infancy Project). n Mothers were on welfare 33 percent less time in the same Elmira Project. n Earnings at age 27 were 60 percent higher among program participants (Perry Preschool

Program). n Benefits outweighed costs and savings were $25,000 versus $12,000 for each family

participating in the Perry program, and $24,000 versus $6000 for each higher-risk family participating in the Elmira program.

In addition, other advantages to program participants (relative to those in the control group) were decreased criminal activity, improved educational outcomes, and improved health-related indicators such as decreased child abuse, improved maternal reproductive health, and reduced substance abuse. Carefully targeted early childhood interventions can yield measurable benefits, and some of those benefits endure for some time after the program has ended.

Source: Greenwood (1999).

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participating in RECLAIM who were eventually committed to state institutions has remained low. Project RECLAIM is a constructive example of coordination and use of community corrections to avoid sending youths to secure institu- tions (Lowenkamp & Latessa, 2005).

Those favoring placement of juveniles in secure institutions cite the public’s fear of violent youth crime as a rationale for incarcerating young offenders. They also argue that “getting those thugs off the streets” prevents further offending (selective incapacitation), provides the structure and control necessary for treatment and educational programs (rehabilitation), and prevents other juveniles from com- mitting serious offenses (general deterrence). Deinstitutionalization advocates counter that many incarcerated juveniles were not committed for serious vio- lent offenses, institutionalization is costly, the deterrence evidence is almost nonexistent, the evidence of effective rehabilitation in correctional facilities is weak, and community alternatives are just as effective. Finally, opponents of institutionalization argue that local community alternatives, when coupled with child advocates, can substantially reduce commitments to state juvenile correctional institutions.24

24Macallair (1994). See also Macallair (1993).

Figure 5.11 Department of Youth Services felony admissions FY 1991–2007. Source: Ohio Department of Youth Services (2010).

0

500

1000

1500

2000

2500

3000

3500

1991 1993 1995 1997 1999 2001 2003 2005 2007

Reclaim Began Statewide 1995

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aftercare and Community Corrections

The majority of juveniles committed to state-managed residential facilities and training schools are serious, chronic offenders. They will eventually be released to the community through parole and onto aftercare. Previous research has shown that recidivism rates among juvenile parolees are unacceptably high, ranging from 55 to 75 percent (Krisberg, Austin, & Steele, 1991). A large per- centage of previously incarcerated juvenile offenders continue their crimi- nal involvement into adulthood. A major portion of the problem is that an already overburdened juvenile corrections and aftercare system is increas- ingly likely to face the kind of youths whom the system had either ignored or failed: serious, chronic offenders. What is needed with this population are effective intervention, intensive supervision and services, a focus on reintegra- tion while incarcerated, and a gradual transition process that utilizes commu- nity resources and social networks. This includes aftercare planning, parole officer contact during the institutional phase, and community-based providers working within the residential setting. The latter would include multifamily counseling and life skills services, supervised trips to the community, overnight or weekend home passes, substance abuse services, and money management skills. Virginia, Colorado, and Nevada are implementing such efforts (Office of Juvenile Justice and Delinquency Prevention, 2000).

the Future oF Juvenile probation and Community CorreCtions Several conclusions are suggested by this review of current trends and develop- ments. It is obvious that juvenile justice and juvenile probation are in a period of rapid change and that juvenile policy is vacillating between the old parens patriae and the newer due process model. Further, the roles and functions of the juvenile probation officer are undergoing change and enlargement. The various state juvenile systems and jurisdictions are moving toward diversion, waiver of juvenile offenders into the criminal justice arena, removal of the status offender from juvenile court jurisdiction, and deinstitutionalization of juve- niles. In addition, faced with legal constraints, requirements for treatment of incarcerated youths, and high costs of juvenile institutions, probation officers are facing emerging and divergent demands. Finally, to divert and refer juve- niles to social services, there must be increased community and private ser- vice programs and agencies to provide local community services to juveniles. States can encourage these developments with subsidies and legislation that enable local and county community corrections (Harris, 1996). Other chap- ters explore privatization of juvenile services; technologies applied to juvenile

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supervision (electronic monitoring, classification devices, specialized service providers, and so on); and newer supervision strategies, such as house arrest, day attendance centers, intensive supervised probation, and specialized casel- oads. Reintegrative and restorative approaches are being implemented across the nation, including restitution, victim–offender mediation, compensation, and community work orders. Issues surrounding crowding, changing faces of probation clients, and training needs can be found in later chapters.

Because juvenile probation services, as agents of court supervision for young offenders, depend on the philosophy of the juvenile court, court administra- tors, and referral agencies, a patchwork of temporizing procedures, responses, and programs is emerging. Some federal funding of coordinated efforts sug- gests that it is possible to implement intensive community-based aftercare programs. Yet with a shortfall in resources facing almost every court agency, innovation and strategic planning are required. There is no quick fix for the quandary of juvenile probation and corrections, and we conclude this section by pointing out that new demands will continue to emerge.

Dean Haumschilt is a parole agent in the California Division of Juvenile Justice (DJJ)—formerly the California Youth Authority (CYA)—and concerned with responsibility to the public after a ward’s parole. He oversees an institutional treatment group preparing juvenile charges for return to the community and for keeping the public safe. The Impact on Victims program requires wards to make changes in their belief system and behavior so they never hurt anyone else. The program attempts to neutralize delinquent, victimizing, or gang type of attitudes, values, and behavior. More than the minimum number of hours in program are required. Wards must incorporate what they learn about their victims, their hurts, fears, nightmares, and wanting some assurance that the ward who victimized them will not victimize them again (or someone else). Role-playing, modeling, behavior change, and cognitive therapy are part of the program. In the end, the group resource leader assesses the ward and asks

Has he or she demonstrated a 180-degree turn in behavior and values: dress, attitude, associations, speech, body language, commitment to change, and empathy? Change is measured by final written examination as well as oral interview and observation.

If the answer is “no,” leaders recommend that wards retake the course and continue to get time additions until either they change their values and the way they think and behave or they run

out of DJJ jurisdiction. Wards must become responsible for their behavior.

Source: Haumschilt (2001).

box 5.10 aCCountability and parole

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summary Our examination of the development of juvenile probation identified those his- torical events of the nineteenth and twentieth century that contributed first to the development of the juvenile court and then to a reexamination of the legal rights of juveniles. Beginning with the first juvenile court in Chicago (1899), the constitutionally guaranteed rights of juveniles were ignored in favor of a benevolent venue intended to provide each child such care, treatment, and welfare as should have been provided by natural parents.

By the 1960s, child advocates and concerned organizations began to ask if the juvenile court was running rough-shod over the rights of its charges while, at the same time, perhaps not delivering on promised benefits. A series of U.S. Supreme Court decisions eventually reasserted such constitutionally guaran- teed protections as the right to trial, to remain silent, to present evidence on one’s own behalf, to question and challenge the evidence presented against the charge, and most other rights available to adults.

Three major changes emerged. First, many jurisdictions undertook deinstitution- alization, moving their charges from state-controlled institutions into community corrections. Second, the emergence of juvenile drug gangs and increased violence led to demands for more punishment, such as waiver to adult court to stand trial as adults and assumedly be punished more severely. Third, increasingly produc- tive efforts were made to marshal a coordinated network of social and treatment programs that would provide rehabilitative and reintegrative services to youths and their families. Evidence of effectiveness as indicated by research on program outcomes suggests that such a coordinated program can yield significant reduc- tions in juvenile delinquency, violence, and recidivism. The three major changes continue, and perhaps the best prediction of future directions in juvenile proba- tion would be that change will increase in speed and intensity. There is much work yet to be done to prevent delinquency and increase public safety.

revieW Questions 1. Why was probation established across the nation much earlier for

juveniles than for adult offenders? 2. Why should probation be the disposition of choice with juvenile

offenders? 3. Identify and describe three major court cases that have affected juveniles. 4. What is deinstitutionalization, and what state led the way in this

movement? 5. Argue the case for binding over serious juvenile offenders as adults;

against this practice. 6. How can public safety be enhanced with juvenile aftercare?

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7. Identify five major innovations in juvenile community corrections. 8. Can early childhood intervention reduce juvenile offending? 9. Do drug courts reduce recidivism? 10. How has juvenile probation changed in the past decade?

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