Juvenile Courts Were Built for Truants, Not for Armed Teenagers

In 1899, a reformer's idea of a young offender was a boy who skipped school, stole apples or ran with a rough crowd. Today the same system must also handle a seventeen-year-old with a stolen pistol and a record. The court was built for the first. It is now asked, daily, to cope with the second.

That is the argument of this piece, and it comes with a warning to both sides. The solution is not to abolish the juvenile court, and it is not to treat every fifteen-year-old as a hardened adult. It is to recognize that the juvenile system was designed for a particular kind of problem and that a small group of violent teenagers falls outside it. Let me make the case in order.

Defining the terms

Start with vocabulary.

• A juvenile court is a court with jurisdiction over minors accused of crimes (delinquency) or of status offenses, which are acts that are illegal only because of the person's age, such as truancy or running away.
• Rehabilitation is the aim of changing the offender so that he does not offend again.
• Accountability is the aim of holding the offender responsible for a wrong, through consequence, restitution and punishment.
• Transfer or waiver is the process by which a young person is moved out of juvenile court and tried as an adult.

The central claim, in numbered form:

1. The juvenile court rests on a sound premise: most young offenders are immature and can be turned around.
2. That premise is true for most juveniles and false for a small number who commit serious violence.
3. A system built on the first premise cannot handle the second group, and it fails the victims of that group.
4. The right response is a system that keeps rehabilitation as the default but has a clear, fair and prompt path to adult accountability for the violent few.

1899: the Cook County experiment

The first juvenile court in the United States, in the form we would recognize, opened in Cook County, Illinois, which includes Chicago, under the Illinois Juvenile Court Act of 1899. Progressive-era reformers, among them women's groups and social workers, wanted to remove children from the adult criminal system, where they could be jailed alongside hardened men and tried with all the formality and severity of the criminal law.

The theory behind the court was parens patriae, a Latin phrase meaning, roughly, "the state as parent." The idea was that the court would act as a wise and caring father, not as a prosecutor. It would hold informal hearings, focus on the child's needs and the home environment, and tailor a response to the child. The hearing was not meant to be adversarial. The child was not on trial for a crime. He was being helped, and the court's job was to find out what he needed.

There was a kind of generosity in it, and for many children it did good. A truant could be returned to school and a neglected child placed in a decent home. Other states quickly copied the Illinois model, and within a few decades nearly every state had a juvenile court.

The weakness was built into the design. A court that views itself as a benevolent parent has no need for the machinery of the law: no lawyer, no formal notice of the charge, no right to confront a witness. The judge was the helper, so why would the child need a defender? The informality that made the system humane for a wayward kid also made it dangerous for a kid who was wrongly accused, or one who was given a harsh outcome in the name of help.

1967: In re Gault

That danger came to the Supreme Court in the case of Gerald Gault. In 1964, Gault, a fifteen-year-old in Arizona, was taken into custody after a neighbor complained about an obscene phone call. His parents were not notified. He was brought before a juvenile judge, there was no lawyer, the complaining neighbor never appeared to testify, and no one made a record of the hearing. The judge committed him to the state industrial school until he turned twenty-one, a period of up to six years. For an adult accused of the same offense, the maximum penalty would have been a small fine or a couple of months in jail.

In In re Gault (1967), the Supreme Court ruled that juveniles facing delinquency proceedings that could end in confinement are entitled to basic due process: written notice of the charges in time to prepare a defense, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. Justice Abe Fortas wrote the opinion. One of its most quoted lines is that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."

Gault is a conservative decision in the best sense. It applies the Constitution's limits on government power to the government's most paternalistic setting. A conservative suspicious of unchecked state authority should cheer it. The state's good intentions were not an excuse for informality, because power exercised with kind intentions can still be power exercised without checks.

But there is a consequence worth noticing, and it cuts the other way. By giving juveniles the procedures of a criminal court, Gault made the juvenile system more like the adult system in form while leaving it designed for a different purpose. That left the courts in an awkward middle: formal enough to be slow and adversarial, but still committed to rehabilitation as their main aim. For a truant that is fine. For a violent teenager, it is a mismatch.

The steelman: the case for keeping the juvenile system as it is

Let me state the other side as fairly as I can.

The defenders of the juvenile system, and they include many thoughtful people, argue that the science and common sense agree on a basic point: adolescents differ from adults. They are more impulsive, more susceptible to peer pressure and more capable of change. The Supreme Court said as much in Roper v. Simmons (2005), when it barred the death penalty for offenders under eighteen, relying in part on the observation that juveniles are less mature, less able to resist negative influences and more capable of reform. Most young offenders do grow out of crime. Treating a sixteen-year-old as an adult exposes him to adult prisons, where he is likely to be victimized and to learn worse habits, which makes him more dangerous when he is eventually released.

On this view, the juvenile system's low-key approach is not softness but efficiency. It tries to turn a young person away from a criminal career early, when it is cheapest and most effective. A society that transfers large numbers of teenagers to adult court is, in effect, giving up on them. And the defenders add that those who are transferred are disproportionately drawn from poor and minority neighborhoods, which raises its own concerns about fairness.

That is a serious argument, and I accept much of it. Most young offenders should be handled in juvenile court. Adolescence is a real category, and a wise system takes it into account. I would add that the reformers who built the first juvenile court were moved by a decent instinct that conservatives should recognize: that children are not simply small adults, and that a society's treatment of its young reflects its character.

The reply: the violent few

Here is where the argument turns. The case for rehabilitation is strong for the typical juvenile offender. It is much weaker for the minority who commit serious violence, and the existing system has trouble with them for three reasons.

1. The tools do not fit. Juvenile courts typically have limited authority over a young person once he reaches a certain age, often the late teens or early twenties. A teenager who commits a murder at sixteen may be released at twenty-one, regardless of what he did or what he is likely to do next. That is not enough time to rehabilitate, and it is not enough punishment for the crime.
2. Victims have little voice. The informal, confidential nature of juvenile proceedings, designed to protect a child's privacy, can leave victims and their families uninformed and sidelined. Accountability that the community cannot see is accountability in name only.
3. Public safety is a real value. A teenager with a gun and a plan is not a truant. The same impulsiveness that argues for mercy toward a first offender also describes a person who may do something terrible tomorrow. A system that cannot say, "This one is dangerous, and he will be held accordingly," has abandoned its duty to everyone else.

None of this requires believing that adolescents are fully adult in their judgment. It only requires believing that some acts are grave enough that the justice system must respond to the act, and not only to the age of the actor. That is a principle we apply everywhere else in the law. We do not excuse a drunk driver because he is impaired. We do not excuse a crime because the offender had a hard life. We take account of those facts in sentencing, and we should do the same here.

Transfer and waiver: how the system sorts offenders

If the juvenile system is to have a path to adult accountability, it needs a mechanism. States use three main ones.

• Judicial waiver. A juvenile court judge, after a hearing, decides whether to transfer a case to adult court. The Supreme Court in Kent v. United States (1966) held that a juvenile is entitled to a hearing and a statement of reasons before waiver, a decision that came just before Gault.
• Statutory exclusion. The legislature lists certain offenses, usually the most serious, such as murder or armed robbery, and provides that a juvenile of a certain age who commits them is automatically tried as an adult.
• Prosecutorial direct file. In some states, the prosecutor has discretion to file charges in adult court without a judge's decision.

Each has strengths and weaknesses. Judicial waiver gives the most individualized review but takes time and relies on a judge's judgment. Statutory exclusion is predictable and transparent but is blunt, since it treats all offenders of a certain kind alike. Prosecutorial direct file is efficient but puts a large decision in one official's hands, with less transparency and less review. A thoughtful conservative should prefer a system that is transparent, rule-based and reviewable, with a hearing that looks at the offense, the offender's history, his amenability to treatment and the risk he poses. The best design is likely a combination: a short list of the gravest offenses that presume transfer, with a chance for the juvenile to show why he should stay, and a judicial hearing for the cases in the middle.

New York's Raise the Age law

The opposite problem arose in New York, and it shows that this is not a one-way argument.

For decades, New York was one of only two states, along with North Carolina, that routinely treated sixteen-year-olds as adults for criminal purposes, no matter how minor the offense, and it did the same with seventeen-year-olds. A seventeen-year-old arrested for a petty offense went into the adult system, with all its consequences. In 2017, as part of the state budget, New York enacted its Raise the Age law, which raised the age of criminal responsibility to eighteen, phasing in the change for sixteen-year-olds in 2018 and seventeen-year-olds in 2019. Most cases involving younger offenders now begin in a family court or in a specialized part of the adult court, with the most serious offenses handled in a special youth part.

There was a decent rationale. Treating a seventeen-year-old who shoplifted the same as a thirty-year-old burglar did not make anyone safer. But the law was also criticized, particularly by police and some prosecutors, who argued that it limited the tools available for teenagers involved in gun violence and that it did too little for victims. Defenders pointed to the law's allowance for the most serious violent offenses to be handled in adult courts. The state has adjusted aspects of it since. I will not pretend to settle that debate here; check the current statute on the New York legislature's website for the specifics. The lesson is the one that matters: a good law works at both ends. It diverts the truant and the first-time offender, and it has a firm response for the teenager with a gun.

The Founding and the moral tradition

Where does the Founding fit in a debate about teenagers and courts?

More than you might think. The framers wrote the Sixth Amendment's guarantee of a speedy and public trial and the right to counsel, and the Fifth Amendment's guarantee of due process, precisely because they distrusted any official who claimed good intentions as a substitute for rules. Gault is the Founders' principle applied to a Progressive-era institution. Power, even benevolent power, needs checks. That is a lesson reformers in 1899 forgot and conservatives should not.

There is also a moral tradition older than the Constitution that bears on the question. The Judeo-Christian view holds both that people are responsible for what they choose and that they are capable of redemption. The best juvenile justice reflects both: accountability for the act and a path to change for the actor. A system that gives up on accountability, or on redemption, has lost half its inheritance. For a related discussion about whether the justice system gets the balance right on second chances, see What the Recidivism Numbers Really Say About Second Chances.

Answering the objections

"Teenagers' brains aren't fully developed, so they shouldn't be held fully responsible." That is a reason for sentencing judgment, not for ignoring the act. The law already distinguishes between degrees of culpability. A system can take youth into account, as a mitigating factor, while still holding a violent offender accountable.

"Transfer to adult court doesn't deter crime." The evidence on that is contested, and honest researchers disagree. But deterrence is not the only purpose. Incapacitation of a dangerous offender, and justice for a victim, are real goods that do not depend on whether others are deterred.

"The system is biased in who it transfers." That is a serious concern and a reason for transparent rules and judicial review, so that the decision to transfer is made on the facts of the case and not on the offender's background. It is not a reason to refuse transfer altogether.

"Conservatives should trust families and communities, not courts." I agree that the best intervention is usually a stable home, a working parent and a church or neighborhood that cares. But when those fail and a teenager commits an act of violence, the court is where society speaks. The question is whether it speaks with clarity.

For related topics on how the system treats offenders at different stages, see How Earned Time Credits Work in Federal Prison, and Who Is Left Out and Texas Chose Treatment Beds Over New Prisons in 2007, and Here Is Why, and for what happens when a prosecutor decides not to charge, see Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them. You can read the Fifth and Sixth Amendments on the Constitution page.

The case in brief

1. The Illinois Juvenile Court Act of 1899 created the first juvenile court in Cook County on the premise that a young offender needs a caring parent, not a prosecutor.
2. In re Gault (1967) correctly brought due process to juvenile cases, because good intentions do not replace constitutional limits on state power.
3. Most young offenders should be handled in juvenile court, a point Roper v. Simmons (2005) supports, but a small number who commit adult violence fall outside what the system was built for.
4. Transfer and waiver rules should be transparent, rule-based and reviewable, with a presumption for the gravest offenses and a hearing for the middle cases, as New York's 2017 Raise the Age law shows by going the other way.
5. A sound system holds both rehabilitation and accountability, the first as the default and the second as a firm response to violence.

What you can do: look up your state's juvenile transfer statute on your legislature's website and ask your county prosecutor how many juvenile cases were transferred last year and why.