My final column before the election will focus on an issue that has been debated in every election that I can remember since I came to Maryland in 1970 – The Juvenile Justice System.
In 1967, in a decision styled In Re: Gault, the Supreme Court of the United States extended to juveniles charged with “juvenile offenses” most of the rights previously afforded only to adults charged with violations of the criminal law, i.e. “crimes.” The single notable exception to the litany of rights extended to juveniles is that, even after Gault, a juvenile does not have a right to a trial by jury.
Critics of the “Post Gault Juvenile Justice System” have not hesitated to point out the problems caused by this decision, as well as the historic and continuing lack of resources devoted to the juvenile justice system and infrastructure. Specifically, these critics note the effect that the large volume of cases has had on the ability of the Juvenile Court to carry out its mission of “treating children.”
This clinical language, which includes words and phrases such as “treatment,” “rehabilitation,” “care and custody,” and “placement” at a suitable facility is used by professionals and the media to describe what is done with a juvenile offender, implies that the mission of the juvenile justice system is viewed as prevention and rehabilitation. This contrasts with the more punitive mission of the adult criminal justice system.
The question we face now is whether the post Gault juvenile justice system can effectively confront and/or treat the greater number and more violent juveniles who are brought into our juvenile courtrooms on a daily basis. It should be noted that the juvenile justice “system” includes not just the Juvenile Court, but also the executive branch agencies of government and community resources which are a part of that system.
This question is answered differently depending on who is being asked. If you ask that question to a prosecutor or other law enforcement official, as well as the increasing number of people who legitimately fear that they will be the next victim of a violent juvenile offender, the answer is increasingly “NO.” This is reflected politically in the legislature in this and every other state. Every year there is an effort to expand the list of crimes which, even if committed by a juvenile, must be charged and tried in Adult Court. This is usually accompanied by a companion effort to reduce the age in which juveniles can be tried as an adult.
If you inquire of attorneys representing juveniles charged in Juvenile Court or Adult Court, as well as Department of Juvenile Services professionals and correctional officers privately, their answer is usually a qualified “YES,” with some changes and greater resources.
If you ask this judge, and I suspect other judges (although I don’t presume to speak for them), my answer is that the juvenile justice system must be reexamined from top to bottom. As a result of that examination by all three branches of government either its subject matter (the number and/or kinds of charges and offenders) must be limited or the resources provided to deal with them substantially expanded.
It has been said that the juvenile justice system acts as a feeder system for the adult system. In many ways that is true. Judges confront this reality on a daily basis when we “use our crystal ball,” try to decide on a case-by-case, offender-by-offender, basis which juveniles can benefit from the limited resources available to them in the juvenile justice system and equally, if not more importantly, which juveniles are so dangerous that they must be confined as an adult to prevent them from injuring the same or another innocent victim. Furthermore, while judges are making these decisions based on very limited information, prosecutors and Department of Juvenile Services officials are making equally difficult and risky decisions as they decide on a daily basis which juveniles arrested by law enforcement officers should initially be formally charged in Juvenile Court, Adult Court or “adjusted informally” by the Department of Juvenile Services.
These decisions are made for a variety of reasons. Although not acknowledged publicly, I am quite sure some of those decisions are resource driven and whether intentionally or not are influenced by the politics which surround the public’s desire that the immediate threat to them and their neighbors be dealt with before anything else. The result of this is to devote the court’s immediate attention to only the more serious cases and offenders and for the Department of Juvenile Justice to “adjust informally” those offenders and cases deemed to be less serious or dangerous.
It can be argued that this sends the wrong message to beginning juvenile offenders who are mislead into thinking they can violate the law without serious consequences and as a result progressively increase the volume and seriousness of their crimes. In turn, when their “delinquent” or “criminal” behavior is confronted in juvenile or Adult Court, it is arguably “too late” or at least much more difficult to halt or turn back the juvenile or young adult’s travel on the road to a life of crime on the streets or behind bars.
This is the reality that confronts the juvenile justice system which should be more than enough reason to justify the reexamination of its philosophical and legal premises as well as its operational reality. In doing so, all three branches of government should consider, among other things, the abolition of the juvenile court and its replacement with a “Youth Correction Act” which would allow judges to utilize all adult and juvenile residential and community resources available without the cumbersome proceedings which accompany the prosecutorial and judicial decision to prosecute the case and the offender in Juvenile Court or Adult Court. Other types of juvenile proceedings, including CINA (Child in Need of Assistance) and CINS (Child in Need of Supervision), as well as the less serious and non-violent delinquency cases could be merged into the Family Divisions in the Circuit Courts of this state. Food for thought and perhaps action in the next four years. I hope!