The Juvenile Legal System
The Juvenile Legal System
- Jeffrey ShookJeffrey ShookUniversity of Pittsburgh
- and Sara GoodkindSara GoodkindUniversity of Pittsburgh
This article is intended to describe the juvenile court and highlight key challenges facing the court and the juvenile legal system today. Social workers were instrumental in the creation and implementation of the juvenile court at the beginning of the 20th century and remain highly involved today. Understanding the juvenile court and its role in society is essential for the field. The article begins with an overview of the history of the juvenile court, focusing on its early decades and then three subsequent periods—1960–1980, 1980–2000, and 2000–2020. It then turns to the structure of the court and provides a brief description of its caseload before ending with a number of challenges facing the court.
- Children and Adolescents
- Criminal Justice
- Policy and Advocacy
- Social Justice and Human Rights
Updated in this version
Content and references updated for the Encyclopedia of Macro Social Work.
A Brief History and Evolution of the Juvenile Legal System in the 20th Century
The Early Juvenile Court
The first juvenile court in the United States was enacted in Cook County, Illinois, in 1899. The creation of the juvenile court was a significant departure from common law, where anyone 14 and older was presumed to be fully culpable for criminal offenses (Rosenheim et al., 2002). The idea of a separate court system for juveniles emerged from shifting ideas about the needs and capacities of young people and a changing social structure. In particular, the shift from an agrarian to an industrial economy, the growth of urban areas, and increased immigration transformed the social and economic structure and the role of young people in this structure. New ideas about the developmental needs and malleability of young people led advocates to push for a separate system for young people focused on what was labeled the “rehabilitative ideal.” This ideal was based on the notion that young people were not miniature adults but were malleable and capable of changing their delinquent ways if treated with understanding and rehabilitation instead of punishment (Feld, 1999).
The juvenile court emerged as the institution that could achieve this goal. By assessing the needs of children and youth and designing and delivering interventions focused on these needs, and not their “offenses,” the juvenile court was viewed as an institution that could help “save” wayward children and youth (Feld, 1999; Rosenheim et al., 2002). Juvenile court interventions often included probation and placement in residential training schools. The rehabilitative ideal and its presumed focus on treatment instead of punishment guided the jurisdiction of and procedures used by the court. For example, the jurisdiction of many juvenile courts included “status offenses” (i.e., behaviors defined as offenses only for juveniles), in addition to acts that would be considered offenses if committed by adults. Status offenses included behaviors such as incorrigibility and truancy from home and school. The inclusion of status offenses widened the jurisdiction of the court and enabled the court to intervene in the lives of more young people (Feld, 1999).
Legal procedures also differed in the juvenile court as compared with the criminal court. The proceedings were considered “civil” in nature because the typical procedures of the court were thought to hinder the ability of a judge to get to know the young person and assess what brought them before the court (Mack, 1909). Criminal procedure and adversarial due process procedures were believed to get in the way of the goal of proceedings. Instead, the court was characterized by informal, nonadversarial procedures and provided substantial discretion to judges and other actors to make determinations about what was best for the youth.
Although the juvenile court was not monolithic and its jurisdiction and structure varied both across and within states, the popularity of the court and its rehabilitative ideal were evidenced by its widespread adoption and implementation throughout the country (Tanenhaus, 2002). Despite criticism and challenges to the early juvenile court and its legitimacy, by the late 1920s most states had implemented a separate court for juveniles (Lou, 1927). By the middle of the 20th century, the juvenile court had become a significant component of the U.S. legal system. Importantly, it not only ushered in a new era of intervening in the lives of young people but also helped to construct and define the categories of childhood and adolescence in the law (Feld, 1999; Grossberg, 2002).
Despite growing acceptance of the juvenile court and the rehabilitative ideal, criticisms remained. Francis Allen (1964) critiqued the rehabilitative ideal for providing no standards or procedures, other than good intentions, to restrain the power of the state and expressed concern about how it shifted attention from what the young person did to what they need. He challenged a foundational idea underlying the court that there was no conflict between the best interests of the child and the interests of the state and argued that the interests of the state would often win out. He also expressed concern that the juvenile court did not have the tools to fully address the causes of delinquency and would fall out of political favor when it was not able to fulfill its mission.
These critiques were echoed by other scholars and advocates and led to several U.S. Supreme Court decisions. In Kent v. United States (383 U.S. 541 ), the Court held that youth being waived to the criminal court by a juvenile court judge must be afforded the opportunity for a hearing that comports with at least the fundamental notion of due process and, absent any state-enumerated statutory criteria, laid out several criteria for judges to consider. In effect, the Kent decision supported an “interest” to remain in the juvenile system and formalized juvenile waiver as a mechanism to protect the traditional juvenile system by transferring to the criminal court those juvenile offenders considered not amenable to treatment through the court (Dawson, 2000; Tanenhaus, 2000).
The following year, the U.S. Supreme Court decided a case focused on due process. In re Gault (387 U.S. 1 ) held that the rehabilitative services and programs of the juvenile court traditionally thought to substitute for due process protections were inadequate. It concluded that youth were receiving the worst of both worlds in the juvenile system because they were neither afforded due process protections nor provided with the benefits of rehabilitation. Gault provided youth with specific due process protections, including notice of charges, access to counsel, opportunity to confront and cross-examine witnesses, and protection against self-incrimination. Gault was an important case that simultaneously afforded youth protections against the power of the state while also upholding the need for a separate legal system for young people.
Several cases over the next decade also addressed rights and procedures within the juvenile court. These cases held that juvenile proceedings were similar to criminal proceedings requiring that guilt must be assessed on the standard of “beyond a reasonable doubt” (In re Winship, 397 U.S. 358 ) and that jeopardy does attach in a juvenile proceeding (Breed v. Jones, 421 U.S. 519 ). However, the Court did not extend the right to a trial by jury to juveniles, basing the determination on the finding that due process only required “accurate fact finding”—a result that could be accomplished by a judge—and the belief that juries would institute fully adversarial proceedings that would deviate from the goals of the juvenile court (McKeiver v. Pennsylvania, 403 U.S. 528 ).
Attention during this period also focused on issues related to the administration of the juvenile legal system, and leading social work scholars, administrators, and advocates played a significant role. Sarri and Hasenfeld (1976) found that the juvenile court intervened in the lives of a significant number of children, but that the vast majority of these cases involved status offenses or minor delinquency offenses. Margaret Rosenheim (1976) labeled these cases “nuisances” and argued that they should be dealt with outside the formal juvenile court. Sarri and Hasenfeld found that case processing varied considerably across courts at each decision-making point and that much of this variation was the result of structural and organizational factors that impeded the realization of the goals of the juvenile court (Sarri & Hasenfeld, 1976; see also Sosin, 1976). Consequently, they also argued there was an overreliance on the court and that many of these cases should be handled by other systems because of the difficulty in navigating the dual mission of social control and social welfare (Sarri & Hasenfeld, 1976; see also Levin & Sarri, 1974; Sosin & Sarri, 1976).
Critics also directed significant attention toward the detention and commitment of juveniles, especially given increases in the rates of juveniles entering juvenile institutions. Studies of juvenile correctional institutions raised concerns about whether these institutions were meeting their intended goal of rehabilitation or, instead, might be producing harmful effects (Vinter, 1976). Studies also revealed that a large number of juveniles were spending time in jails or detention centers and highlighted the substantial negative impacts that this detention had on youth (Sarri, 1974). Based on these findings, advocates called for major reductions in the use of secure or closed institutions and greater use of prevention programs and community-based alternatives (Sarri, 1974; Vinter, 1976).
Reforms intended to address the shortcomings of the juvenile legal system came in several forms—diversion, community-based programs, deinstitutionalization, and decriminalization (Sarri & Hasenfeld, 1976). Diversion programs were increasingly instituted to reduce the number of juveniles formally processed in the system (Austin & Krisberg, 1981; Cressey & McDermott, 1973). Community-based programs were also emphasized as a means to promote youth development in communities and outside the legal system (Downs, 1976). Many of these reforms were included in the first major federal juvenile justice law, the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA). In Massachusetts, Jerry Miller led the movement in the 1970s to remove youth from secure institutions and place them in community-based programs (Miller, 1998). These and other attempts at deinstitutionalization led to significant drops in the number of youth held in residential programs throughout the country.
Despite these lessons, the 1980s and 1990s featured a turn to a largely punitive and control-oriented juvenile system that mirrored shifts in the criminal legal system. Part of this transformation was a critique of the rehabilitative ideal that gained momentum in the 1970s when scholars and policymakers, on both the left and the right, increasingly questioned the discretion inherent in the rehabilitative ideal and whether rehabilitation worked. Much of this transformation, however, was the result of racialized notions of the “offender” interacting with increasing violent crime rates from the late 1980s into the early 1990s. Rising violent crime and racialized rhetoric eroded confidence in the rehabilitative ideal and led to retributive sentencing reforms such as mandatory minimum sentences and “three strikes” laws.
In addition to racialized rhetoric toward crime and violence, the War on Drugs reflected racist misperceptions of offending behavior and played a significant role in the system of mass incarceration in the United States. Numerous accounts have documented the role of racism in the growth of the criminal legal system and its reach into many communities. For example, Michelle Alexander (2012) extensively documents the racialized image of the “offender” and its role in the War on Drugs and other policies and practices that have fueled the growth of the criminal legal system. Scholars have provided a strong argument that criminal legal policies and practices of the era were driven not by crime but by various intersecting racist structures that continue to have an enduring oppressive and marginalizing effect (Beckett, 1997; Soss et al., 2011; Wacquant, 2009).
The juvenile legal system was not immune to these forces, mirroring shifts in the criminal system in many ways. Rising juvenile violent crime rates also interacted with racialized notions of youth crime, leading to a loss in confidence in the ability of the system to provide treatment and rehabilitation. Instead, a growing fear of youth, particularly youth of color, led to increased criminalization of young people and more punitive policies and practices being adopted by the court (Feld, 1999; Shook, 2005). Whereas the original ideals surrounding the juvenile court called for closed proceedings and records, policies were passed that increasingly allowed for open proceedings and records. Mandatory or determinate sentences were enacted in some states. Calls for diversion and deinstitutionalization from the 1960s and 1970s gave way to large increases in the number of youth formally brought into the system and placed on probation or in residential facilities.
The criminalization of youth was most significantly manifested in policies and practices that increasingly eased the process of treating juveniles as adults in the legal systems. Spurred by slogans such as “adult crime, adult time” and the racialized notion of juvenile “superpredators,” every state in the country enacted policies that made it easier to treat juveniles as adults. These policies took a variety of forms (Shook, 2005). Many states lowered the minimum age at which a juvenile could be tried as an adult and/or expanded eligible offenses for which a juvenile could be tried as an adult. More significantly, many states enacted or expanded policies that excluded juveniles, largely based on age and offense characteristics, from the jurisdiction of the juvenile court. Other states enacted policies that provided prosecutors with the discretion to decide whether to file in the juvenile or criminal court. Some states created hybrid mechanisms that allowed juveniles to be given blended sentences and/or be tried as adults in the juvenile court. While these policies and practices did not dramatically change the jurisdiction of the juvenile court, they led to a significant increase in the number of youth entering the criminal legal system and, in conjunction with other policy and practice changes, offered a challenge to the rehabilitative ideal and to the idea of the juvenile court itself.
The period of 2000–2021 has featured another significant change in the juvenile court. Juvenile violent and serious crime began dropping in the 1990s and has largely continued to decline during the 2000s. Between 2000 and 2019, juvenile arrests for violent crimes were cut by slightly more than half and juvenile arrests for property crimes by well more than half (Hockenberry & Puzzanchera, 2021). Consistent with drops in juvenile crime, juvenile court caseloads also dropped. In 2000, the juvenile court formally and informally processed almost 1.7 million cases, compared with approximately 722,000 delinquency cases and just over 90,000 status offense cases in 2019 (see Figure 1) (Hockenberry & Puzzanchera, 2021). Similarly, the number of juveniles on probation, detained, and committed to juvenile residential facilities also dropped substantially (Hockenberry & Puzzanchera, 2021).
While the declining caseload of the juvenile court since the turn of the century is driven in large part by the decline in juvenile arrests, other factors contributed to caseload declines. Similar to the 1960s and 1970s, research continued to demonstrate that formally processing youth and placing them in secure detention and/or residential facilities contributed to recidivism and other problematic outcomes. Research also continued to focus on diversion, alternatives to detention, and community-based programs and services. A major conclusion of this research was the need to develop alternatives to formal processing and residential placements. Additionally, findings from research on adolescent and brain development identified important differences between children and adults and raised additional questions about the punitive approaches of the 1980s and 1990s (Scott & Steinberg, 2008).
Pushed by advocates, including social workers and leading social work organizations, state and local jurisdictions began to question punitive policies and practices, as well as their costs, and some started moving back toward community-based services and supervision. For example, the National Association of Counties (2014) highlighted the important role of counties in juvenile legal system administration and provided examples of how specific counties across the country had responded to high caseloads, high costs, and poor outcomes to implement diversion and other community-based programs and services. At the state level, Missouri gained attention because of its transition to a system of small residential facilities and a focus on community-based services (Mendel, 2010). Further pushed by advocates, states questioned their policies and practices that treated juveniles as adults. For example, social work advocates and organizations such as the National Association of Social Workers (NASW) have been involved in successful campaigns to raise the age of juvenile court jurisdiction in states that establish it below age 18, such as New York, and the Massachusetts branch of the NASW is advocating to raise the age to beyond 18 years old in light of brain development and other evidence. The NASW published a Social Justice Brief that provided a series of recommendations on limiting the movement of youth to the adult system (Thomas & Wilson, 2017).
Another important factor in changes in policies and practices in the 2000s has been the role of the U.S. Supreme Court. In 1988, the Court found the death penalty unconstitutional for individuals under the age of 16 at the time of their offense (Oklahoma v. Thompson, 487 U.S. 815 ). Yet the following year it upheld the death penalty for those who were 16 or 17 years old at the time of their offense (Stanford v. Kentucky, 492 U.S. 361 ). The Court revisited the issue in 2005 in Roper v. Simmons (543 U.S. 551 ), holding that the death penalty was unconstitutional for offenses committed under the age of 18. The majority decision held that there were indices of societal consensus against the death penalty for juveniles. Importantly, the decision also relied on a range of other evidence to hold that juveniles are categorically less culpable and have a greater capacity for change (Visser & Shook, 2013).
Roper was a landmark decision but there were questions about whether its holdings would be extended beyond the death penalty. These questions were answered four years later in Graham v. Florida (560 U.S. 48 ). Graham considered whether life without parole sentences for juveniles convicted of nonhomicide offenses were constitutional and held that there were indices of societal consensus against these sentences and that the scientific evidence since Roper strengthened findings regarding differences between juveniles and adults. Graham extended the Roper decision outside the death penalty to other sentences, opening the door to additional challenges (Visser & Shook, 2013). Two years later the Court held that mandatory life without parole sentences for juveniles were unconstitutional (Miller v. Alabama, 567 U.S. 460 ). Because Miller was determined to be retroactive in some states but not in others, the Court held in Montgomery v. Louisiana (537 U.S. __ ) that Miller was retroactive and required states to provide resentencing hearings for juveniles who had been sentenced to life without parole through a mandatory sentencing statute.
Taken together, these four cases represented a significant constraint on the state’s ability to punish juveniles. They not only invalidated some of the most severe sentences given in the U.S. legal system but also offered an unequivocal framework illustrating differences between juveniles and adults. Although the Court halted this line of cases constraining the power of the state to punish juveniles in Jones v. Mississippi (141 S. Ct. 1307 ), the rationale behind these cases has been influential in moving juvenile legal policy and practice back toward the goals of rehabilitation and treatment.
Structure and Caseload of the Juvenile Court
The structure of the juvenile court is important for understanding its decision-making points and how youths’ cases move through the system. The National Center for Juvenile Justice (NCJJ), a leading research center on the juvenile system, produces numerous annual reports, figures, fact sheets, and briefings focused on youth offenses and the movement of youth through the system. Figure 2 provides a basic understanding of the decision-making points and how youth move through the system. Not included in the figure is the first step through which a youth enters the system, the decision to arrest. Most cases referred to the juvenile court are through arrests, although some come from other referral sources such as parents or schools. Police have discretion both in deciding to arrest and in referring a case to the court, as some state statutes provide discretion for police to offer formal or informal sanctions. Once a case is referred to the court, a decision is made regarding whether or not to divert the case. Diversion refers to the process of providing a sanction, referring the youth to services, or dismissing the case with a warning, among a variety of options.
A youth may be detained, released to a parent or guardian, or placed in an alternative-to-detention program. If a formal petition is filed and sufficient evidence is provided to support it, the petition begins to work its way through the court process. This process involves a series of hearings that can culminate in a trial. The ultimate finding of guilt in the juvenile court is often referred to as an adjudication. Many states have mechanisms to handle cases without an adjudication. For example, in Pennsylvania the youth and the state may enter into a “consent decree” where the case is continued under supervision and, if the youth meets the conditions of the consent decree, the case is dismissed. If an adjudication occurs, either through a plea or a trial, the court holds a disposition hearing where it can order probation with a range of conditions, residential placement, and/or other programs or services available in the county or state.
As Figure 2 demonstrates, a formal petition is entered in approximately 54% of cases referred to the juvenile court, and 53% of those are adjudicated. Among petitioned cases, 1% are waived to the criminal court. It is important to note that this only includes waivers that involve a juvenile court judge. Cases that are excluded by statute or filed in the criminal court by a prosecutor are not included in these counts. Importantly, approximately two-thirds of delinquency cases referred to the court receive some sort of sanction, which includes out-of-home placement, probation, and other sanctions, such as intensive community supervision, fines, or restitution.
Thirty-three percent of delinquency cases in 2019 were for person offenses, 30% for property offenses, 13% for drug offenses, and 24% for public order violations (Hockenberry & Puzzanchera, 2021). Older youth are more likely to be referred to the juvenile court—46% of all cases were for youth 16 or 17 years old, whereas 10–15-year-olds represented 54% of cases. Boys (72%) and youth of color (57%) represent the majority of youth referred to the juvenile court. Juvenile court referrals for status offenses are tracked separately from delinquency referrals, in part because these cases are handled differently in different states and jurisdictions. In 2019, there were approximately 90,500 referrals for status offenses, the majority of which were for school truancy (Hockenberry & Puzzanchera, 2021). The rate of referral for status offenses has been cut in half since 2005, with decreases for truancy smaller, relatively, than for running away, ungovernability, and curfew and liquor violations.
Social Justice Issues
Criminalization of Youth of Color
Since the mid-20th century, critics have questioned the rehabilitative promise of the juvenile legal system, noting that the system functions more to punish and criminalize young people than it does to help them. Citing the growing body of evidence that diversion from court processing for all but the most serious offenses is more effective at preventing future legal system involvement than any juvenile court intervention, scholars and advocates have, specifically, attacked the broadening reach of the system. Nowhere is this criminalization more pronounced and troubling than with regard to youth of color, particularly Black, Latinx, and Indigenous youth. Though Black youth and other youth of color were largely excluded from the early rehabilitative projects of the juvenile court, it is not a coincidence that their inclusion coincided with a punitive turn (Ward, 2012).
Currently, Black youth are about three times as likely as white youth to be referred to the juvenile court (Hockenberry & Puzzanchera, 2021). Extensive research has demonstrated that differences in actual engagement in behaviors for which youth can be referred do not account for this large differential in referral rates (e.g., Wallace et al., 2008). For example, Black youth are more likely than white youth to be referred to the juvenile court for drug offenses, despite the fact that white youth have higher rates of drug use (Goodkind, 2016). Adultification and other forms of implicit and explicit bias lead to differential treatment for similar behaviors as research shows that adults perceive Black youth to be older, more culpable, and less amenable to rehabilitation than white youth (Epstein et al., 2017).
As described subsequently, the criminalization of Black, Latinx, and Indigenous youth often begins in school, where they are much more likely than other youth to be punished for “disorderly conduct,” essentially a catch-all charge that includes things such as excessive noise, obscene gestures or language, and other typical teenage behaviors. Further, research shows that Black, Latinx, and Indigenous youth are frequently funneled into the juvenile legal system for behavioral health challenges, while white youth with similar issues are more likely to be offered mental health treatment outside the legal system.
Girls, Gender, and the Juvenile Court
When most people think of a “juvenile delinquent,” they picture a boy. Boys do account for the majority of referrals to the juvenile court—72% in 2019, the most recent year for which national statistics were available at the time of writing (Hockenberry & Puzzanchera, 2021). Nevertheless, girls have been a target of juvenile court intervention since its inception, with a particular focus of social workers and other juvenile court professionals during the early days of the court on patrolling girls’ sexuality (e.g., through referring girls for “waywardness,” “immorality,” and “incorrigibility”) and gender conformity (manifested by treating girls more harshly than boys for violent offenses and sending “wayward” girls to reformatories where they were prepared for motherhood and domesticity) (Abrams, 2000; Abrams & Curran, 2000; Chesney-Lind, 1997). While “immorality” and “waywardness” are no longer referral reasons, young people continue to be referred for the status offense of incorrigibility (sometimes termed ungovernability), and girls continue to be treated more harshly than boys for violent behaviors and other offenses perceived as incongruent with their gender.
In 1992, the reauthorization of the Juvenile Justice and Delinquency Prevention Act called for “gender-specific services” to meet the needs of the growing numbers of girls referred to the juvenile court. (To be clear, there was a growing number of boys being referred at that time as well, as noted previously.) However, the JJDPA did not specify what these services should look like, and, notably, “gender-specific” has been interpreted to mean “for girls.” Many of the programs developed in response to this call were based on research conducted with white middle-class girls, despite the fact that low-income girls and girls of color are more likely to be referred to the juvenile court (Goodkind, 2005). The higher referral rates of low-income girls and girls of color are related to the fact that girls and women are often criminalized for their survival strategies in response to economic marginalization and victimization (Richie, 1996). Research shows that some of these “gender-specific” programs, despite good intentions, served to reinforce gendered stereotypes and inequities rather than help girls overcome them (Goodkind, 2009).
Since 2005, juvenile court referrals have decreased by just over half for both boys and girls (Hockenberry & Puzzanchera, 2021). Nevertheless, girls continue to be referred at high rates for status offenses, and in some locations an intersectional approach reveals greater racial disproportionality in referrals among girls than among boys (e.g., Elliott et al., 2020). Further, because of the relatively smaller numbers of court-involved girls compared with boys, girls are sometimes placed in more restrictive settings than assessments determine are needed because there are fewer options. For example, boys may be ordered to intensive community supervision where they live at home and wear an ankle tracker, while similarly assessed girls are sent to out-of-home placement. The solution is not to create more programs for girls within the juvenile legal system but rather to divert youth from the system since the vast majority of referrals to the juvenile court are for minor offenses.
The juvenile legal system has always treated boys and girls differently and has had strict separation between boys and girls in out-of-home placement and other programming. In addition to the double standards that such practices perpetuate, they are further problematic for the large numbers of trans, nonbinary, and gender-expansive young people who encounter the juvenile legal system, particularly because trans youth are frequently placed in facilities based on their sex assigned at birth rather than their gender. While representative research that enables a good estimate of the numbers of trans youth incarcerated is lacking, it is known that LGBTQIA+ young people are overrepresented in the juvenile legal system, in part because many are thrown out of their homes or run away to escape mistreatment, and many of their survival strategies are criminalized (Mountz, 2020). Developing supportive services for families outside the child welfare and legal systems could help to reduce this overrepresentation.
In the 21st century, there has been increased attention to the role of schools in funneling young people into the juvenile legal system. Specifically, behaviors that used to be handled within schools have been dealt with by calling the police or increasing the school police presence. Thus, the school-to-prison pipeline refers to a system of practices and policies that may be framed as intended to protect children but that instead facilitates the exclusion of Black and brown children, children with disabilities, and other vulnerable children from schools, channeling them into the legal systems. In her book The Rage of Innocence: How America Criminalizes Black Youth, Kristin Henning (2021) details the growing number of police in schools. Though some have cited Columbine as a motivating force in the increased presence of police in schools, Henning describes how school integration in response to the Brown v. Board of Education decision was what set this change in motion. She argues that white fear, privilege, and resentment contributed to this trend, which increased during the civil rights era.
Black, Latinx, and Indigenous children are more likely than white youth to attend schools that have school police, and schools with police arrest students at three and a half times the rate of schools without (Henning, 2021). Arrests account for the vast majority of referrals to the juvenile legal system, which is why a large proportion of referrals come from schools and school-based incidents. The school-to-prison pipeline often begins with school disciplinary practices such as detention, suspension, and expulsion. Research shows that Black, Latinx, and Indigenous students are more likely to experience these punitive measures, differences that cannot be accounted for by differences in behaviors or other sociodemographic characteristics (Wallace et al., 2008). There has been a widespread call for increased funding for school counselors and social workers, and some schools are implementing restorative practices as a more effective and less punitive way to deal with disruptive student behavior and disagreements. Social workers are well poised to play important roles in developing these alternatives to school discipline, exclusion, and the school-to-prison pipeline.
Treating Juveniles as Adults
As discussed earlier, one major aspect of the punitive turn of the juvenile court in the 1980s and 1990s was the widespread adoption of policies and practices intended to increase the population of youth eligible to be tried as adults and to enact mechanisms to ease the process of trying juveniles as adults. The effect of these policy and practice changes was an increase in the number of young people tried as adults and a broader population of youth being tried as adults. Despite rhetoric of transferred youth being the “worst of the worst” and needing punishments that extended well into adulthood, many young people sentenced as adults did not receive prison sentences and many of those who did receive prison sentences were eligible to be released in their late teens or early twenties. Studies of whether these policy changes increased public safety generally found that transferred juveniles were more likely to recidivate than those retained in the juvenile court. This is explained, at least in part, by studies that found important differences between experiences in adult versus juvenile placements, such as services offered and mental health outcomes.
These findings, in conjunction with research on adolescent and brain development, have led many to conclude that these policies and practices have had negative consequences for young people, public safety, and the legal systems themselves (Shook, 2014). Conclusions regarding the negative impacts of these policies and practices are also reflected in a trend for states to reform these policies. Many states are considering making changes. For example, the Governor’s Juvenile Justice Task Force in Pennsylvania has recommended ending the practice of directly filing juvenile cases in the criminal court. While work remains to continue to pass legislation aimed to limit the number of youth processed in the criminal court and to influence transfer practices, the 2010s has reflected promising movement and a growing acceptance of science.
From Child Welfare to the Juvenile Court
Often referred to as crossover or dual jurisdiction youth, the large number of young people who move from the child welfare system to the juvenile or criminal legal system is a continuing concern (Kolivoski et al., 2017). Research on the movement of young people from child welfare to the juvenile legal system generally looks at the relationship between child welfare experiences and juvenile legal involvement. It finds that experiences such as placement instability and placement in a congregate care facility are often related to juvenile legal system involvement. Young people of color are more likely to move from child welfare to the juvenile legal system, and studies that have taken an intersectional approach find differences by race and gender (Goodkind et al., 2013).
Scholars have expressed concern that movement across systems is not solely related to behavior but reflects greater surveillance along with less willingness to tolerate normal adolescent behavior. Whereas parents may tolerate difficult behavior in the home, foster parents or congregate care staff may be more willing to move a youth into the juvenile system. There is a significant amount of concern about moving young people from the child welfare to the juvenile legal system (Goodkind et al., 2020). These issues are of great concern to social workers as they are highly involved in both systems and social workers are involved in developing and implementing training and systems-based models seeking to limit the movement of young people across systems and to increase system coordination when they do move across systems (see the Center for Juvenile Justice Reform’s Crossover Youth Practice Model).
While Gault provided juveniles with the right to an attorney, critics argue that juvenile legal defense is ineffective and that Gault actually hurt juveniles by turning the court into a miniature adult court without adequate protections (Feld, 1993). Other critics have more broadly criticized the state of indigent legal defense in the United States. Underfunding, high caseloads, and limited resources, especially as compared with prosecutors, are among the challenges facing the indigent defense system. Despite these critiques, defense attorneys play an important role in a young person’s case. For example, a recent study found that the defense attorney is as or more important than the judge and police in a young person’s assessment of the fairness of their experience in the system and the legitimacy of the system (Shook et al., 2021).
As states and local jurisdictions seek ways to improve the delivery of indigent legal defense, holistic representation, which frequently involves social workers and/or a social work approach, is a promising option. Holistic representation generally features teams of professionals working together to address the case that brought the young person into the system while also attending to other issues in the young person’s life. For example, school issues often accompany a charge in the juvenile court and addressing these needs to be part of meeting a young person’s needs. Or, quite often, the young person does not need the typical array of services the court orders to most cases that come through the system. A holistic approach can advocate for the right services or, in many cases, no programs or services. There are potential tensions between the social work and legal roles in these cases that need to be considered, and the approach of many defense attorneys is that the social worker is part of the legal team and bound by that role. While these tensions need to be addressed, holistic representation can help improve legal defense and is recommended by the NASW (Thomas & Wilson, 2017).
Human Rights and Abolition
Human rights conventions, rules, and standards offer another framework for challenging the reach and harmful impact of the court. Sarri and Shook (2005) analyzed juvenile policies and practices in light of human rights frameworks and found that the United States was in violation of many United Nations human rights conventions (e.g., the Convention on the Rights of the Child, which the United States has never ratified). Human rights advocates note the extensive reach of the juvenile legal system in the United States, which has a much higher rate of youth incarceration than any other country. Human rights approaches focus on the dignity and humanity of all and provide young people with rights and entitlements not available in constitutional law. Unfortunately, they are underused in guiding policies and practices and can be an important tool in efforts to fully advance the best interests of young people by focusing on systems of social supports rather than punishments.
Similarly, a growing group of scholars and advocates, including many social workers, are calling for the abolition of the criminal legal system. At the same time, calls are growing for the abolition of the juvenile legal and child welfare systems. These calls differ from those made by Barry Feld and others in the 1990s to abolish the juvenile court and create a unified adult court for all offenders. Abolitionists ground their calls in research documenting the expansion of the carceral state concomitant with a retraction of funding and other resources for programs, services, and social supports (Richie & Martensen, 2020). They note the social construction of crime—in other words, how what is considered criminal or delinquent and is responded to as such by systems has varied over time and space. In particular, there is extensive documentation of the criminalization of Black, Latinx, and Indigenous people for behaviors that are not criminalized among white people. Abolitionists call for an end to punishment and imprisonment, which will no longer be necessary in a society that creates restorative justice responses to harmful behavior and meets people’s needs through investment in supportive programs and policies. Social workers have the skills and experience needed to contribute to, and perhaps take a leading role in, the realization of this vision of a world without prisons.
Future Trends: Challenges and Opportunities for Social Work
While the period since 2000 has featured some movement away from the punitive shift in the juvenile legal system, challenges remain, and there is a significant role for social workers in further transforming the system. In particular, there is a need to continue to build supports and resources for young people and their families outside of legal and other systems. Social workers have important roles in educational, child welfare, and behavioral healthcare systems where such supports can be provided. Abolitionist perspectives, human rights approaches, and empirical evidence all call for limiting or eliminating reliance on legal systems. Social workers have important roles to play in policy advocacy and research as well. Although the number of youth in the juvenile legal system has decreased considerably, it is still too high, significant racial disparities remain, and most youth enter the system for minor offenses. Social workers are well positioned to envision and enact a more just world.
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