The transformation of the juvenile court - Part II: Race and the "crack down" on youth crime

Minnesota Law Review

Volumn 84, Issue 2, 1999, Pages 327-394

  Feld, Barry C ^a,b,c,d  

^a UNIVERSITY OF MINNESOTA   (United States)

^b UNIVERSITY OF PENNSYLVANIA   (United States)

^c UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

^d HARVARD UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0345846112     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (306)

1. See FRANKLIN E. ZIMRING, AMERICAN YOUTH VIOLENCE 3-16 (1998);
2. see also JAMES ALAN FOX, U.S. DEP'T OF JUSTICE, TRENDS IN JUVENILE VIOLENCE: A REPORT TO THE UNITED STATES ATTORNEY GENERAL ON CURRENT AND FUTURE RATES OF JUVENILE OFFENDING 2 (1996).
3. See Barry C. Feld, Juvenile and Criminal Justice Systems' Responses to Youth Violence, 24 CRIME & JUST. 189, 194-220 (1998) (analyzing recent changes in juvenile court waiver and sentencing laws).
4. Barry C. Feld, The Transformation of the Juvenile Court, 75 MINN. L. REV. 691, 700-22 (1991) (summarizing the procedural and substantive convergence between juvenile and criminal courts).
5. This Article continues that analysis and builds on my growing body of research, including Criminalizing the American Juvenile Court, 17 CRIME & JUST. 197 (1993) (analyzing changes in procedure, jurisdiction, and jurisprudence of juvenile courts) [hereinafter Feld, Criminalizing the American Juvenile Court];
6. Criminalizing Juvenile Justice: Rules of Procedure for the Juvenile Court, 69 MINN. L. REV. 141 (1984) (analyzing the procedural convergence between juvenile and criminal courts) [hereinafter Feld, Criminalizing Juvenile Justice];
7. The Juvenile Court Meets the Principle of the Offense: Legislative Changes in Juvenile Waiver Statutes, 78 J. CRIM. L. & CRIMINOLOGY 471 (1987) (discussing punitive policies in waiver statutes) [hereinafter Feld, Juvenile Waiver Statutes];
8. and The Juvenile Court Meets the Principle of Offense: Punishment, Treatment, and the Difference it Makes, 68 B.U. L. REV. 821 (1988) (discussing punitive juvenile court sentencing practices) [hereinafter Feld, Punishment, Treatment].
9. See generally BARRY C. FELD, BAD KIDS: RACE AND THE TRANSFORMATION OF THE JUVENILE COURT 189-224 (1999).
10. Id. at 7; see Barry C. Feld, Abolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy, 88 J. CRIM. L. & CRIMINOLOGY 68, 74 (1997).
11. See generally FELD, supra note 5, at 189-244 (arguing that macrostructural changes associated with deindustrialization of the inner city led to the crack cocaine epidemic and increases in young black males' homicide rates which, in turn, fostered punitive juvenile and criminal justice policies).
12. See infra note 33 and accompanying text.
13. See Feld, supra note 6, at 115-16.
14. See generally JOHN R. SUTTON, STUBBORN CHILDREN: CONTROLLING DELINQUENCY IN THE UNITED STATES, 1640-1981 (1988) (discussing the impact of changing social construction of childhood on juvenile justice policies);
15. Janet E. Ainsworth, Re-imagining Childhood and Reconstructing the Legal Order: The Case for Abolishing the Juvenile Court, 69 N.C. L. REV. 1083, 1085-1101 (1991) (analyzing the social construction of childhood and its impact on juvenile justice treatment ideology).
16. See generally ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY 101-36 (2d ed. 1977) (discussing the origins of the Cook County Juvenile Court);
17. DAVID J. ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVE IN PROGRESSIVE AMERICA (1980) (discussing the social structural context of the Progressives' building of social welfare and social control institutions);
18. ROBERT H. WIEBE, THE SEARCH FOR ORDER, 1877-1920 (1967) (discussing the impact of industrialization on social institutions).
19. On the role of developing social theories on criminal justice and juveniles, see also FRANCIS A. ALLEN, THE BORDERLAND OF THE CRIMINAL JUSTICE: ESSAYS IN LAW AND CRIMINOLOGY 25-41 (1964)
20. and ELLEN RYERSON, THE BEST-LAID PLANS: AMERICA'S JUVENILE COURT EXPERIMENT (1978) (analyzing the impact of social sciences on juvenile courts "rehabilitative" ideology).
21. See JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM 1860-1925, at 87 (2d ed. 1988);
22. RICHARD HOFSTADTER, THE AGE OF REFORM: FROM BRYAN TO F.D.R. 8 (1955).
23. See Ainsworth, supra note 10, at 1094 n.68. Professor Ainsworth explains that a society is a composite of humanly constructed social artifacts, one of which is the idea of "childhood." See id. at 1085-91. "[T]he life-stage we call 'childhood' is likewise a culturally and historically situated social construction . . . . The definition of childhood - who is classified as a child, and what emotional, intellectual, and moral properties children are assumed to possess - has changed over time in response to changes hi other facets of society." Id. at 1091, 1093.
24. See CARL N. DEGLER, AT ODDS: WOMEN AND THE FAMILY IN AMERICA FROM THE REVOLUTION TO THE PRESENT 9, 178-209 (1980);
25. JOSEPH F. KETT, RITES OF PASSAGE: ADOLESCENCE IN AMERICA, 1790 TO THE PRESENT 114-15 (1977);
26. CHRISTOPHER LASCH, HAVEN IN A HEARTLESS WORLD: THE FAMILY BESIEGED 6-10 (1977) (analyzing the effects on family life of the nine-teenth-century emancipation of women and the growth of industrialization).
27. The idea of childhood specifies the social, cultural, and physical characteristics that distinguish children from adults. See DAVID ARCHARD, CHILDREN: RIGHTS AND CHILDHOOD 16-17 (1993). Within the past couple of centuries, western societies began to differentiate the period between infancy and adulthood, and to evidence greater concern for the welfare and rearing of children.
28. In CENTURIES OF CHILDHOOD: A SOCIAL HISTORY OF FAMILY LIFE 365-404 (1962), Philippe Aries traced the modernizing of the family and childhood to the upper bourgeois and nobility in the sixteenth and seventeenth centuries when their indifference to their offspring began to diminish.
29. Neil Postman in THE DISAPPEARANCE OF CHILDHOOD 37-51 (Vintage Books 1994) (1982) noted that churchmen and moralists in the seventeenth and eighteenth centuries advocated greater parental responsibility to raise their own children, to oversee their education, to restrict their indiscriminate contact with non-family members, and to protect their innocence. These changing views of children and parental responsibility gradually diffused downward through the social class structure over time. In the early nineteenth century, a newer view of childhood began to alter child-rearing practices in America. By the end of the century, urban upper-and middle-class parents invested far greater efforts to prepare their children for adult roles and to restrict their autonomous departures from home. Degler called the nineteenth century the "Century of the child," and attributed change in child-rearing methods to the emerging perception of children. DEGLER, supra note 14, at 71-72. Degler observes: Children began to be seen as different from adults; among other things they were considered now more innocent; childhood itself was perceived as it is today, as a period of life not only worth recognizing and cherishing but extending. Moreover, simply because children were being seen for the first time as special, the family's reason for being, its justification as it were, was increasingly related to the proper rearing of children. Id. at 66; see also KETT, supra note 14, at 111-43; Ainsworth, supra note 10, at 1091-96.
30. See generally HOFSTADTER, supra note 12; WIEBE, supra note 11. Progressivism encompassed a host of ideologies and addressed a broad spectrum of issues. See generally, e.g., GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM: A REINTERPRETATION OF AMERICAN HISTORY, 1900-1916, at 195-99 (1963) (economic regulation) [hereinafter TRIUMPH OF CONSERVATISM]; ROTHMAN, supra note 11, at 5-13 (criminal justice);
31. HANS B. THORELLI, THE FEDERAL ANTITRUST POLICY: ORIGINATION OF AN AMERICAN TRADITION (1954) (antitrust).
32. Progressives sponsored laws to regulate railroads, to restrict corporate trusts and economic abuses, and to reform business practices. See generally BRUCE BRINGHURST, ANTITRUST AND THE OIL MONOPOLY: THE STANDARD OIL CASES, 1890-1911 (1979) (antitrust);
33. GABRIEL KOLKO, RAILROADS AND REGULATION 1877-1916 (1965) (railroad regulation);
34. ROBERT H. WIEBE, BUSINESSMEN AND REFORM: A STUDY OF THE PROGRESSIVE MOVEMENT (1962) (business regulation).
35. They legislated for urban public health and welfare reform and to improve child welfare. See generally SUTTON, supra note 10, at 130-32; SUSAN TIFFIN, IN WHOSE BEST INTEREST? CHILD WELFARE REFORM IN THE PROGRESSIVE ERA 141-61 (1982);
36. WALTER I. TRATTNER, FROM POOR LAW TO WELFARE STATE: A HISTORY OF SOCIAL WELFARE IN AMERICA 108-54 (3d ed. 1984).
37. They introduced civil service and "good government" reforms to limit the power of corrupt urban ethnic political bosses. See generally SAMUEL HAYES, THE RESPONSE TO INDUSTRIALISM, 1885-1914 (Daniel J. Boorstin ed., 1957). For our purposes, Progressive reformers embraced many "child-saving" programs to respond to the myriad of threats to child development: inadequate and broken families, dependency and neglect, poverty and welfare, education and work, crime and delinquency, recreation and play.
38. Progressives invoked scientific rationality and claimed special expertise to legitimate their programs and to expand their professional authority. See BURTON J. BLEDSTEIN, THE CULTURE OF PROFESSIONALISM: THE MIDDLE CLASS AND THE DEVELOPMENT OF HIGHER EDUCATION OF AMERICA 85-92 (1976). Sutton states that: [A] characteristic feature of Progressive movements was their tendency to see social control not as a moral or political problem, but primarily as an administrative problem. Progressives sought to depoliticize the growing demands for the protections of a welfare state by promoting reforms that emphasized administrative efficiency and professional expertise rather than substantive changes in the allocation of rights and economic resources. SUTTON, supra note 10, at 124. Progressives believed that they could solve contentious social problems with rational and scientific methods, and attempted to transform political and moral conflicts into technical managerial decisions made by experts in administrative agencies insulated from partisan strife.
39. See TRIUMPH OF CONSERVATISM, supra note 16, at 2-3; ROTHMAN, supra note 11, at 45-50. Progressives believed that neutral, detached experts could apply knowledge rationally to formulate public policy without political distraction. See SUTTON, supra note 10, at 127. They created governmental agencies to implement their economic and social reforms, and enlarged and expanded the power of the State. See supra note 16 and accompanying text. They felt that benevolent public governmental action could ameliorate the dislocations of social change and provide a necessary counterbalance to the power of private corporations.
40. Progressives sought to use the state to inculcate their values in others. See ROTHMAN, supra note 11, at 45-50; cf. ALLEN, supra note 11, at 129-30. Rothman notes that: The most distinguishing characteristic of Progressivism was its fundamental trust in the power of the state to do good. The state was not the enemy of liberty, but the friend of equality - and to expand its domain and increase its power was to be in harmony with the spirit of the age. . . . The state was not a behemoth to be chained and fettered, but an agent capable of fulfilling an ambitious program. ROTHMAN, supra note 11, at 60. They viewed individual and social welfare as co-extensive and saw no need to interpose procedural safeguards to protect individuals from state benevolence. See id. Although Progressives used modern managerial techniques and organizational strategies, they derived their vision for social reforms from an earlier, more homogenous and traditional society. See id. at 9. A shared moral consensus and supreme confidence in their own values sustained them. See id. at 60-61. They used governmental agencies to assimilate and acculturate immigrants and the poor to become more like themselves. See David Rothman, The State as Parent: Social Policy in the Progressive Era, in DOING GOOD: THE LIMITS OF BENEVOLENCE 67, 79-82 (Willard Gaylin et. al. eds., 1981).
41. See ROTHMAN, supra note 11, at 205-12; see also PLATT, supra note 11, at 43.
42. Many Progressive programs shared a unifying child-centered theme. "The child was the carrier of tomorrow's hope whose innocence and freedom made him singularly receptive to education in rational, humane behavior. Protect him, nurture him, and in his manhood he would create that bright new world of the progressives' vision." WIEBE, supra note 11, at 169; see also LAWRENCE A. CREMIN, THE TRANSFORMATION OF THE SCHOOL: PROGRESSIVISM IN AMERICAN EDUCATION, 1876-1957, at 127-28 (1961) (compulsory school attendance laws); KETT, supra note 14, at 215-44; TIFFIN, supra note 16, at 187-214 (child welfare legislation);
43. WALTER I. TRATTNER, CRUSADE FOR THE CHILDREN: A HISTORY OF THE NATIONAL CHILD LABOR COMMITTEE AND CHILD LABOR REFORM IN AMERICA 120-21 (1970) (child labor laws).
44. Criminal justice and social control policies reflect underlying ideological assumptions - unstated presuppositions, values, and beliefs - about causes of crime and appropriate tactics and strategies to reduce it. See FRANCIS T. CULLEN & KAREN E. GILBERT, REAFFIRMING REHABILITATION 27 (1982). "These cultural patterns structure the ways in which we think about criminals, providing the intellectual frameworks (whether scientific or religious or commonsensical) through which we see these individuals, understand their motivations, and dispose of them as cases.
45. Cultural patterns also structure the ways in which we feel about offenders . . . ." DAVID GARLAND, PUNISHMENT AND MODERN SOCIETY 195 (1990). Classical criminal law assumed that rational, free-willed moral actors made voluntary choices to commit crimes, and that they deserved prescribed consequences for their acts. See, e.g., id. at 28-35. The criminal law reflected a retributivist jurisprudence that blamed and punished offenders for the quality of their choices, or the mens rea, rather than attempting to affect their morality according to social utility. See id. at 61-66, 74-76. In the late nineteenth and early twentieth centuries, Progressives reformulated their ideology of crime, modified criminal justice administration, and based social control practices on new theories about human behavior and social deviance. See ROTHMAN, supra note 11, at 52-61. Positive criminology asserted that antecedent forces - biological, psychological, social, or environmental - "determined" or caused criminal behavior. See id. at 50-52. Reflecting the modern rationalizing tendencies, they sought scientifically to identify the causes of crime and delinquency in order to prescribe an appropriate remedy.
46. See ALLEN, supra note 11, at 26; DAVID MATZA, DELINQUENCY AND DRIFT 5-11 (1964). Positivism attributed criminal behavior to deterministic forces that compelled the offender to act as he did, rather than to a deliberate exercise of "malicious" free will. See MATZA, supra, at 12-21. Determinism reduced offenders' moral responsibility for their crimes, and penologists attempted to reform them rather than to punish them for their offenses.
47. See FRANCES ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL 3-7 (1981). "The positivist model demanded consideration of each criminal's background and personal traits as part of an intelligent disposition. It demanded a system of individualized justice in which punishment and deterrence were of limited relevance." RYERSON, supra note 11, at 22. At the turn of the century, Progressive criminal justice reformers aspired to scientific status and sought to strengthen the similarities between the causal determinism of the natural sciences and those of the social sciences. See id. at 101 (noting Progressives "helped open the way to a . . . 'more scientific approach'"). In its quest for scientific legitimacy, criminology borrowed both its methodology and vocabulary from the increasingly scientific medical profession. See id. at 105-24. Just as germs caused diseases, deterministic assumptions redirected criminological research scientifically to study offenders in order to identify the causes of crime. See id. The ability to identify the causes of crime implied the correlative ability to "cure" it through appropriate interventions. See id. Medical metaphors - pathology, infection, diagnosis, and treatment - provided popular analogues for criminal justice professionals. See ROTHMAN, supra note 11, at 293-323. The medical model of criminality emphasized diagnosis, prescription, and intervention to cure the problems of each offender. See id.; see also RYERSON, supra note 11, at 105-24.
48. For example, Francis Allen has written eloquently of the ascendance and decline of the "Rehabilitative Ideal" and noted its central assumptions: The rehabilitative ideal . . . assumed; first, that human behavior is the product of antecedent causes. These causes can be identified. . . . Knowledge of the antecedents of human behavior makes possible an approach to the scientific control of human behavior. Finally . . . it is assumed that measures employed to treat the convicted offender should serve a therapeutic function; that such measures should be designed to effect changes in the behavior of the convicted person in the interest of his own happiness, health, and satisfaction and in the interest of social defense. ALLEN, supra note 11, at 26. A flourishing rehabilitative ideal requires both a belief in the malleability of human behavior, and a basic moral consensus about the appropriate directions of human change. See id. at 26-27. It requires a cultural consensus about means and ends and an agreement about the goals of change and the strategies necessary to achieve them. See id. Progressives believed that the new human behavioral sciences provided them with the necessary "technology," the tools with which to systematically change people. See RYERSON, supra note 11, at 99-136. They also believed in the virtues of their social order and the propriety of imposing their middle-class values on immigrants and the poor: "Progressives were equally convinced of the viability of cultural uplift and of the supreme desirability of middle class life in cultural as well as material terms. . . . The model was clear: all Americans were to become middle class Americans." ROTHMAN, supra note 11, at 48-49.
49. See id at 205-35.
50. See, e.g., PLATT, supra note 11, at 176-81; ROTHMAN, supra note 11, at 234-35; SUTTON, supra note 10, at 232-58.
51. See ROTHMAN, supra note 11, at 212.
52. Conceived as a system of social welfare rather than punishment, juvenile courts brought within their ambit of control young peoples' behavior that criminal courts previously ignored or handled informally. See PLATT, supra note 11, at 46-74; SUTTON, supra note 10, at 121-53. This broader jurisdictional definition included not only a child's criminal acts but her status or condition of being, indeed, her entire lifestyle. Progressives used the status jurisdiction to legislate and regulate: their preferences in the realm of manners and morals. . . . [T]he juvenile court reformers were placing their movement among a number of others which were, in the progressive period, sending numerous missionaries from the dominant culture to the lower classes to acculturate immigrants, to teach mothers household management and to supervise the recipients of charity. RYERSON, supra note 11, at 47. Thus, the status jurisdiction embodied the newer cultural conception of childhood, further legally separated youths from adults, and expanded state authority over child-rearing and family functions.
53. See Julian W. Mack, The Juvenile Court, 23 HARV. L. REV. 104, 107 (1909).
54. Juvenile court judges imposed indeterminate and non-proportional dispositions that could continue for the duration of minority. See THOMAS BERNARD, THE CYCLE OF JUVENILE JUSTICE 90-96 (1992). "Indeterminate" meant that the judge set no specific limit to the length of sentence; it could continue indefinitely until adulthood.
55. See Feld, Punishment, Treatment, supra note 4, at 848-50. "Non-proportional" meant that no relationship existed between what the child allegedly did and the length of disposition; the trivial or serious nature of the offense imposed no limits in advance. See BERNARD, supra, at 90-96. The particular reason or offense that brought a child before the court affected neither the degree, the duration, nor the intensity of intervention. See RYERSON, supra note 11, at 40. Each child's circumstances differed and judges responded to "needs" rather than "deeds." Id. at 40-41. In theory, every youth held the key to their own release from confinement or supervision simply by reforming. Juvenile court jurisprudence rejected blameworthiness and deserved punishment for past offenses in favor of a utilitarian strategy of future-oriented social welfare dispositions. In theory, judges decided why the child appeared in court and what the court could do to change the character, attitude, and behavior of the youth to prevent a reappearance. See id. It was a social welfare agency, the central processing unit of the entire child welfare system. Children who had needs of any kind could be brought into the juvenile court, where their troubles would be diagnosed and the services they needed provided by court workers or obtained from other agencies. BERNARD, supra, at 83. Courts decided each case on the basis of unspecified "clinical" considerations that did not necessarily control the disposition of the next case.
56. See RYERSON, supra note 11, at 39-40.
57. See id.
58. See ROTHMAN, supra note 11, at 56-57.
59. See id at 59-61.
60. See RYERSON, supra note 11, at 42-43.
61. W. NORTON GRUBB & MARVIN LAZERSON, BROKEN PROMISES: How AMERICANS FAIL THEIR CHILDREN 69 (1982) (describing the impact of selective application of parens patriae ideology in a class-based society); see also PLATT, supra note 11, at 36-39; ROTHMAN, supra note 11, at 222-23.
62. See FELD, supra note 5, at 80-81.
63. See id. at 94-97. See generally NICHOLAS LEMANN, THE PROMISED LAND: THE GREAT BLACK MIGRATION AND HOW IT CHANGED AMERICA (1992).
64. See FELD, supra note 5, at 80-81.
65. See id.
66. The outbreak of World War I in 1914 simultaneously increased the demand for U.S. industrial production and reduced the availability of European immigrants to work in northern factories. See DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID 18, 26-28 (1993). Northern labor recruiters importuned rural southern blacks to migrate at the same time that the Mexican boll weevil invaded the South and devastated cotton production, and the mechanical cotton picker decreased the demand for black tenant and share-cropping farmers. See LEMANN, supra note 35, at 5-7; MASSEY & DENTON, supra, at 27-29. Worsening economic conditions during the Great Depression impelled an additional 400,000 blacks to leave the South for northern cities. See MASSEY & DENTON, supra, at 43. "Push" factors, as well as "pull" factors, motivated the black exodus: southern racial hostility, Jim Crow laws, Ku Klux Klan violence, lynchings, poor segregated schools, and job discrimination provided incentives to migrate. See LEMANN, supra note 35, at 14-15. Although the Great Depression temporarily depressed the net emigration of blacks from southern states, the opportunities to work in industries associated with war production during the 1940s induced more than 1.5 million blacks to leave their rural homes. See MASSEY & DENTON, supra, at 45.
67. See LEMANN, supra note 35, at 14-15; see also MASSEY & DENTON, supra note 38, at 27-29.
68. See also MASSEY & DENTON, supra note 38, at 29.
69. See LEMANN, supra note 35, at 16-17; MASSEY & DENTON, supra note 38, at 45 (noting that postwar economic growth encouraged "extensive black out-migration . . . totaling 1.5 million during the 1950s and 1.4 million during the 1960s").
70. See MASSEY & DENTON, supra note 38, at 18.
71. See id.
72. See id. at 18. During this massive migration, southern blacks poured into Chicago, Detroit, Philadelphia, Newark, and other northern, midwestern, and western urban centers. See id. at 21, 45; see also LEMANN, supra note 35, at 16. By World War II, the majority of blacks lived in urban America. See LEMANN, supra note 35, at 6. During the War, twelve million men and women entered the armed forces, and fifteen million civilians relocated for new defense jobs. See FELD, supra note 5, at 85. From 1940 to 1944, war-time defense contractors integrated their work forces and the black population in urban areas increased dramatically. See ANDREW HACKER, TWO NATIONS: BLACKAND WHITE, SEPARATE, HOSTILE, UNEQUAL 18 (1992).
73. See MASSEY & DENTON, supra note 38, at 44-45.
74. See id. at 29, 34.
75. See id. at 32-33. The black urban residential experience differed from that of preceding generations of ethnic immigrants for whom ghettos provided way-stations, places to adapt and adjust before moving into mainstream society. See id. The black ghetto remained more racially homogeneous, concentrated, and impermeable.
76. See id. at 17-59.
77. In the period after 1945, suburbs surrounding major cities grew rapidly as federal housing policies and mortgages subsidized privately-owned single-family homes. See MICHAEL B. KATZ, THE UNDESERVING POOR: FROM THE WAR ON POVERTY TO THE WAR ON WELFARE 134-35 (1989). While the prosperity that fostered the baby-boom also sustained suburban growth, "[g]overnment-guaranteed mortgages and tax deductions for mortgage interest payments made new homes available to millions with little or nothing down and low monthly payments. . . . Prosperity, easy credit, and a massive road-building program also increased the number of automobiles," without which the suburban lifestyle would not have been possible.
78. Charles E. Strickland & Andrew M. Ambrose, The Baby Boom, Prosperity, and the Changing Worlds of Children, 1945-1963, in AMERICAN CHILDHOOD 533, 541 (Joseph M. Hawes & N. Ray Hiner eds., 1985). The federal government cut mortgage subsidies for the construction of rental units and the Federal Housing Administration "red-lined" sections of cities threatened by the "Negro invasion" and reduced the availability of mortgage and home improvement loans there. See KATZ, supra, at 135. Even as federal highway policy subsidized white dispersal, the location of interstate highways disrupted many black communities and created physical barriers to contain their expansion. See id. at 135-36.
79. See KATZ, supra note 49 at 134.
80. See LEMANN, supra note 35, at 118-19; see also MASSEY & DENTON, supra note 38, at 186-216.
81. See LEMANN, supra note 35, at 118-19.
82. See id. at 6-7.
83. See infra note 63 and accompanying text.
84. During the 1960s, urban riots rocked American cities as black Americans reacted violently to decades of segregation, deprivation, social isolation, and alienation. See MASSEY & DENTON, supra note 38, at 190. In the first nine months of 1967 alone, 164 urban race riots occurred and augured the possibility of a national race war. See LEMANN, supra note 35, at 190. The National Advisory Commission on Civil Disorders, popularly known as the Kerner Commission, attributed the riots to a legacy of racial discrimination in employment, education, social services, and housing. See NATIONAL ADVISORY COMM'N ON CIVIL DISORDERS, REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 1 (1968). Established in the aftermath of the mid-1960s urban race riots, the Kerner Commission warned that the United States "[was] moving toward two societies, one black, one white - separate and unequal." Id. Despite the historical prevalence and persistence of black segregation and poverty, the Commission cautioned that continuing existing policies would "make permanent the division of our country into two societies; one, largely Negro and poor, located in the central cities; the other predominantly white and affluent, located in the suburbs." Id. at 22. The Commission rejected a strategy of "ghetto enrichment" as a policy of "separate but equal" that would institutionalize and make permanent racial divisions in American society. Id. It proposed instead "a policy which combined ghetto enrichment with programs designed to encourage integration of substantial numbers of Negroes into the society outside the ghetto." Id. In AMERICAN APARTHEID, Massey and Denton contend that public policies created and foster persisting residential racial segregation, perpetuate high levels of black poverty, exacerbate the social and economic harms associated with racial isolation and concentrated poverty, and maintain the urban underclass. MASSEY & DENTON, supra note 38, at 9. In many respects, contemporary urban poverty, youth crime and violence represent the culmination of social structural processes predicted by the Kerner Commission.
85. Despite the sympathetic findings of the Kerner Commission, see supra note 55, Andrew Hacker argues that the riots changed many whites' perceptions of the legitimacy of blacks' grievances and provided the context for racism in subsequent public policies: Whites ceased to identify black protests with a civil rights movement led by students and ministers. Rather, they saw a resentful and rebellious multitude, intent on imposing its presence on the rest of the society. . . . As the 1970s started, so came a rise in crime, all too many of them with black perpetrators. By that point, many white Americans felt they had been misused or betrayed. Worsening relations between the races were seen as largely due to the behavior of blacks, who had abused the invitations to equal citizenship white America had been tendering. HACKER, supra note 44, at 22. The increased punitiveness of juvenile courts and the disproportionate minority over-representation in the juvenile justice system constitute one manifestation of these processes. The public and politicians support harsh, "get tough" policies because they perceive young, urban black males as the juvenile crime problem. Similarly, Katherine Beckett argues in MAKING CRIME PAY: LAW AND ORDER IN CONTEMPORARY AMERICAN POLITICS 83-88 (1997) that race provides the subtext of the politicization of crime policies.
86. During the 1960s, a number of political and cultural forces combined to undermine the Progressives' consensus about state benevolence, to erode support for imposing middle-class values on others, and to question the desirability of rehabilitation as a criminal justice goal and policy. See ALLEN, supra note 21, at 25-41. See generally CULLEN & GILBERT, supra note 21. In turn, the popular and political unraveling of support for rehabilitation and conservative support for a "crack down" on crime and racial minorities encouraged the Supreme Court to impose due process safeguards in juvenile and criminal justice to protect people from the State. See RYERSON, supra note 11, at 147.
87. 387 U.S. 1 (1967).
88. The decline of support for rehabilitation mirrored a broader decline in the legitimacy of public authority. See, e.g., ALLEN, supra note 21, at 34 (discussing the lack of political analysis in penal rehabilitation). In TWILIGHT OF AUTHORITY 14 (1975), Robert Nisbet identified many social indicators of the "crisis of legitimacy," including increased public hostility toward government; the decline of political parties and public participation in the political process; the erosion of patriotism; increased criminality and lawlessness. "I know of no major poll that has not shown, over the past two decades, almost continuous decline in popular trust of government and its leaders, in expressed confidence in the political process, and in desire or willingness to participate directly in this political process." Id. Although a decline in a sense of public purpose pervaded many political and legal institutions, criminal and juvenile justice systems experienced a precipitous loss of public and self-confidence because Progressives had such high aspirations for them. See generally ALLEN, supra note 21 (discussing the rehabilitative ideal and the decline and criticism of social purpose). Whereas a Progressive's claim of compassion legitimated a program, by the 1960s, a bureaucrat's claim to act benevolently on behalf of a client elicited primarily skepticism and closer scrutiny for self-serving interests: "To announce that you are prepared to intervene for the best interest of some other person or party is guaranteed to provoke the quick, even knee-jerk, response that you are masking your true, self-interested motives." See Rothman, supra note 18, at 82.
89. See generally AMERICAN FRIENDS SERV. COMM., STRUGGLE FOR JUSTICE (1971). Radical critics emphasized that no criminal justice programs or reforms could ameliorate or avoid the inevitable consequences that flowed from racial inequality and economic and social injustice in the larger society. See CULLEN & GILBERT, supra note 21, at 21.
90. Liberal disenchantment with the rehabilitative ideal reflected a broader disillusionment with the ability of the State to "do good." See Rothman, supra note 18, at 82-84. Rothman also emphasized the "limits of benevolence" and the failure of a paternalistic state to deal justly with its most vulnerable citizens. Id. at 83-84. Liberals criticized correctional personnel's exercise of clinical discretion, emphasized the unequal consequences received by similarly-situated offenders, and questioned the scientific foundations of "penal treatment." See AMERICAN FRIENDS SERV. COMM., supra note 60, at 34-47 (discussing problems with the individualized treatment model).
91. Conservative critics advocated "law and order" and supported a "war on crime." See FELD, supra note 5, at 106-07. They perceived a fundamental breakdown of the moral and legal order in rising crime rates, civil rights marches and civil disobedience for racial justice, students' protests against the war in Vietnam, and urban and campus turmoil. See id. Conservatives attributed crime and social disorder to a "permissive" society and advocated firm discipline for the young, restoration of patriarchy in the family, respect for authority, and an end to "coddling" criminals. See CULLEN & GILBERT, supra note 21, at 12-13. Their efforts to "get tough" supported a succession of "wars" on crime and later on drugs; longer criminal sentences; increased prison populations; and disproportional incarceration of racial minority offenders. See MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME AND PUNISHMENT IN AMERICA 94-95 (1995). Political efforts to "get tough" on youth crime provide the impetus to transform the juvenile court into an explicitly punitive extension of criminal justice policies. See supra notes 34-37 and accompanying text.
92. During the 1960s "Due Process Revolution," the Supreme Court resorted to adversarial procedural safeguards and other judicial rules to limit the state, to constrain discretion, and to protect peoples' freedom and liberties. See FRED P. GRAHAM, THE SELF-INFLICTED WOUND 26-66 (1970). Several threads weave through the fabric of the Supreme Court's due process jurisprudence: an increased emphasis on individual liberty and equality; a distrust of state power; an unwillingness to rely solely on good intentions and benevolent motives; and criticisms of discretion in the treatment of deviants. See FELD, supra note 5, at 94-97. The question of race unified all of these separate strands. See id.
93. 387 U.S. 1 (1967). In re Gault involved the delinquency adjudication and institutional confinement of a youth who allegedly made a lewd telephone call of the "irritatingly offensive, adolescent, sex variety" to a neighbor woman. Id. at 4. Police took fifteen-year-old Gerald Gault into custody, detained him overnight without notifying his parents, and required him to appear at a juvenile court hearing the following day. See id. at 5. A probation officer filed a pro forma petition that alleged simply that Gault was a delinquent minor in need of the care and custody of the court. See id. No complaining witnesses appeared and the juvenile court neither took sworn testimony nor prepared a transcript or written memorandum of the proceedings. See id. At the hearing, the juvenile court judge interrogated Gault about the alleged telephone call and he apparently made some incriminating responses. See id. at 6. The judge did not advise Gault of the right to remain silent, the right to counsel, or provide him with the assistance of an attorney. See id. at 10. Following his hearing, the judge returned Gault to a detention cell for several more days. See id. at 6. At his dispositional hearing the following week, the judge committed Gault as a juvenile delinquent to the State Industrial School "for the period of his minority [that is, until 21], unless sooner discharged by due process of law." Id. at 7-8. If a criminal court judge had convicted Gault as an adult, it could have only sentenced him to a $50 fine or two months imprisonment for his offense. See id. at 29. Gault, however, faced the possibility of incarceration for up to six years, the duration of his minority because a juvenile court adjudicated him as a delinquent. See id.
94. See id. at 31-57; see also id. at 22, 24, 27 (discussing whether juveniles should be afforded constitutional protection through procedural safeguards); Feld, Criminalizing Juvenile Justice, supra note 4, at 169-90 (comparing and contrasting the procedural rights available to delinquents and to adult criminal defendants);
95. Francis Barry McCarthy, Pre-Adjudicatory Rights in Juvenile Court: An Historical and Constitutional Analysis, 42 U. PITT. L. REV. 457, 459-60 (1981) (discussing the limitations on juveniles' procedural rights);
96. Irene Merker Rosenberg, The Constitutional Rights of Children Charged with Crime: Proposal for a Return to the Not So Distant Past, 27 UCLA L. REV. 656, 662-63 (1980) (stating that constitutional protections should attach in proceedings that may result in incarceration of a child).
97. See Gault, 387 U.S. at 14-17.
98. See id. at 15-31.
99. See Feld, Criminalizing Juvenile Justice, supra note 4, at 161-63.
100. See infra text accompanying notes 71-77.
101. See Feld, supra note 6, at 90-95; Feld, Criminalizing the American Juvenile Court, supra note 4, at 254-55;
102. Feld, Criminalizing Juvenile Justice, supra note 4, at 272-76. For example, in In re Winship, the Court required states to prove juvenile delinquency by the criminal law's standard of proof "beyond a reasonable doubt." 397 U.S. 358, 368 (1970).
103. Kent v. United States, 383 U.S. 541, 566 (1966) (stating 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").
104. 403 U.S. 528 (1971) (plurality opinion).
105. See id. at 550. The McKeiver Court departed significantly from its own prior analyses in Gault and Winship which emphasized the dual functions of constitutional criminal procedures to assure accurate fact finding and to protect against governmental oppression. The McKeiver Court plurality denied that juveniles required protection against government oppression, rejected the argument that the inbred, closed nature of the juvenile court could prejudice the accuracy of fact finding, and invoked the mythology of the sympathetic, paternalistic juvenile court judge: Concern about the inapplicability of exclusionary and other rules of evidence, about the juvenile court judge's possible awareness of the juvenile's prior record and of the contents of the social file; about repeated appearances of the same familiar witnesses in the persons of juvenile and probation officers and social workers - all to the effect that this will create the likelihood of prejudgment - chooses to ignore, it seems to us, every aspect of fairness, of concern, of sympathy, and of paternal attention that the juvenile court system contemplates. Id. Rather than identifying the affirmative protections that procedural safeguards provide, the Court in McKeiver emphasized the adverse impact that a constitutional right to a jury trial would have on the flexibility and confidentiality of juvenile court proceedings. See id. The Court feared that a jury trial right would disrupt juvenile courts, substantially alter their informal practices, and bring "the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial." Id. The Court realized that the right to a jury would render juvenile courts procedurally indistinguishable from criminal courts and raise the question whether any need remained for a separate juvenile court. See id. at 550-51. Ultimately, the McKeiver Court denied young offenders the right to a jury trial in juvenile court because it adhered to the ideal of treatment of children in a separate justice system. While the Court acknowledged the deficiencies and disappointments of the rehabilitative ideal, see id. at 543-45, it did not want to express its "ultimate disillusionment," abandon those concepts, and return young offenders to the criminal justice system. Id. at 546. Critically, however, the McKeiver Court did not analyze either the constitutional differences between treatment and punishment, or between youths and adults that justified a different form of procedural justice for delinquents. Several recent juvenile justice legislative reforms provide some youths with a statutory right to a jury in order to expand the punitive sentencing options available to juvenile court judges. See Barry C. Feld, Violent Youth and Public Policy: A Case Study of Juvenile Justice Law Reform, 79 MINN. L. REV. 965, 1039 (1995) (analyzing states providing juveniles with right to jury trial in order to enhance the punishment capacities of juvenile courts).
106. Fare v. Michael C., 442 U.S. 707, 725 (1979) (discussing the need to determine whether the accused gave a "knowingU," "intelligent[]," and "voluntar[y]" waiver of Miranda rights under the "totality of the circumstances"); see also Barry C. Feld, The Right to Counsel in Juvenile Courts: An Empirical Study of When Lawyers Appear and the Differences They Make, 79 J. CRIM. L. & CRIMINOLOGY 1185, 1201-03 (1989).
107. Empirical studies of juveniles' comprehension of Miranda rights indicated that most youths who received the warnings did not understand them well enough to waive them in a "knowing and intelligent" manner. See Thomas Grisso, Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis, 68 CAL. L. REV. 1134, 1160 (1980)
108. [hereinafter Grisso, Juveniles' Capacities to Waive];
109. see also THOMAS GRISSO, JUVENILES' WAIVER OF RIGHTS: LEGAL AND PSYCHOLOGICAL COMPETENCE (1981);
110. Thomas Grisso, Juveniles' Consent in Delinquency Proceedings, in CHILDREN'S COMPETENCE TO CONSENT 131 (Gary B. Melton et al. eds., 1983) [hereinafter Grisso, Juveniles' Consent]. Younger juveniles exhibited even greater difficulties understanding their rights: As a class, juveniles younger than fifteen years of age failed to meet both the absolute and relative (adult norm) standards for comprehension . . . . The vast majority of these juveniles misunderstood at least one of the four standard Miranda statements, and compared with adults, demonstrated significantly poorer comprehension of the nature and significance of the Miranda rights.
111. Grisso, Juveniles' Capacities to Waive, supra, at 1160;
112. see also Rona Abramovitch et al., Young Persons' Comprehension of Waivers in Criminal Proceedings, 35 CANADIAN J. CRIMINOLOGY 309, 318 (1993) (replicating Grisso's study in Canada and finding that very few juveniles fully understood the warnings and that the youths who lacked comprehension waived their rights more readily); A. Bruce Ferguson & Alan Charles Douglas, A Study of Juvenile Waiver, 7 SAN DIEGO L. REV. 39, 54 (1970) (finding that over 90% of the juveniles whom police interrogated waived their rights, an equal number did not understand the rights they waived, and even a simplified Miranda warning failed to increase understanding). In sum, juveniles simply lack the competence of adults to understand and therefore to waive constitutional rights in a "knowing and intelligent" manner. Moreover, Grisso cautions that research conducted under "ideal" laboratory conditions may fail to capture sufficiently the individual characteristics, social context, and stressful coercive conditions associated with actual police interrogation. See Grisso, Juveniles' Consent, supra, at 141. Children's responses to hypothetical questions in a relaxed atmosphere do not replicate adequately the conditions created by police who "can be gentle or tough, can explain the rights well or poorly, and in many ways can exert varying amounts of pressure to comply." Abramovitch et al., supra, at 319. Typically, delinquents come from lower income households and may possess less verbal skills or capacity to understand legal abstractions than those in these studies. See GRISSO, supra, at 193-96. Children from poorer and ethnic-minority backgrounds often express doubt that law enforcement officials will not punish them for exercising legal rights.
113. See generally Gary B. Melton, Taking Gault Seriously: Toward a New Juvenile Court, 68 NEB. L. REV. 146 (1989). Immaturity, inexperience, and lower verbal competence than adults make youths especially vulnerable to police interrogation tactics. Youths' social status relative to authority figures and police also renders them more susceptible than adults to the coercive pressures of interrogation. See GRISSO, supra, at 18-19. Most people believe that answering the police in a respectful and cooperative manner will benefit them, at least in the short run.
114. Cf. Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 YALE L.J. 259, 319 (1993). Inexperienced youths may waive their rights and talk in the short-sighted and unrealistic belief that their interrogation will end more quickly and secure their release. See GRISSO, supra, at 154-56. Many people from traditionally disempowered communities, such as females, African-Americans, and youths, pragmatically use indirect patterns of speech in order to avoid conflict in their dealings with authority figures. See Ainsworth, supra, at 263-64. People with lower social status than their interrogators typically respond more passively, "talk" more readily, acquiesce to police suggestions more easily, and speak less assertively or aggressively. See id. at 286-88. Thus, Fare's requirement that youths invoke Miranda rights forthrightly and with adult-like precision runs contrary to the normal and predictable social reactions and verbal styles of most delinquents.
115. In the three decades since Gault, the promise of representation and effective assistance of counsel still remains unrealized. See generally BARRY C. FELD, JUSTICE FOR CHILDREN: THE RIGHT TO COUNSEL AND THE JUVENILE COURTS (1993) (analyzing the impact of counsel in juvenile courts). In many states, half or less of all juveniles receive the assistance of counsel to which the law entitles them.
116. See, e.g., AMERICAN BAR ASS'N, A CALL FOR JUSTICE: AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS 19-27 (1995) (reviewing literature on access to counsel and quality of representation) [hereinafter A CALL FOR JUSTICE];
117. KIMBERLY L. KEMPF ET AL., AN ANALYSIS OF APPARENT DISPARITIES IN THE HANDLING OF BLACK YOUTH WITHIN MISSOURI'S JUVENILE JUSTICE SYSTEMS 95 (1990) (finding that lawyers represented only 39.6% of urban youths and 5.3% of rural juveniles); see also id. at 148-87 (noting that rates of representation differed substantially among judicial circuits and that judges removed a significant proportion of youths who appeared without counsel from their homes);
118. Stevens H. Clarke & Gary G. Koch, Juvenile Court: Therapy or Crime Control, and Do Lawyers Make a Difference?, 14 L. & SOC'Y REV. 263, 297 (1980) (finding that juvenile defender project represented only 22.3% of juveniles in Winston-Salem, N.C., and only 45.8% in Charlotte, N.C., in 1978);
119. Barry C. Feld, In re Gault Revisited: A Cross-State Comparison of the Right to Counsel in Juvenile Court, 34 CRIME & DELINQ. 393, 399-403 (1988) (finding that in three of the seven states surveyed in the mid-1980s, lawyers represented only 37.5%, 47.7%, and 52.7% of juveniles charged with delinquency and status offenses); Feld, supra note 74, at 81 (noting that in Minnesota in 1986, a majority of all juveniles appeared without counsel). In 1995, the United States General Accounting Office analyzed rates of representation in certain counties in three states and found that rates of representation varied among the states, within each state, and across offense and offense histories within each state.
120. See U.S. GEN. ACCOUNTING OFFICE, JUVENILE JUSTICE: REPRESENTATION RATES VARIED AS DID COUNSEL'S IMPACT ON COURT OUTCOMES 11-13 (1995).
121. The American Bar Association published two reports on the legal needs of young people. In AMERICA'S CHILDREN AT RISK 60 (1993), the American Bar Association reported that "[m]any children go through the juvenile justice system without the benefit of legal counsel. Among those who do have counsel, some are represented by counsel who are untrained in the complexities of representing juveniles and fail to provide 'competent' representation." In a second study, A CALL FOR JUSTICE, supra, at 22-23, the American Bar Association focused on the quality of lawyers in juvenile courts and reported that the conditions under which lawyers worked in juvenile courts often significantly compromised youths' interests and left many of them literally defenseless. Defense lawyer-respondents also reported that many youths waived counsel and appeared in juvenile courts without representation. See id. at 7. Whatever the reasons and despite Gault's promise of counsel, many juveniles never see a lawyer, waive their right to counsel without consulting with an attorney, fail to appreciate the legal consequences of relinquishing counsel, and face the power of the State without professional assistance. See FELD, Criminalizing Juvenile Justice, supra note 4, at 190. Waiver of counsel constitutes the most common explanation why so many youths appear without a lawyer. See generally GRISSO, supra note 75, at 131-60. As with waivers of Miranda rights, most jurisdictions use the adult legal standard to assess whether a juvenile "knowingly and voluntarily" decided to waive counsel under the "totality-of-the-circumstances." See Fare, 442 U.S. at 725; see also Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938) (requiring that the accused prove that he did not "competently and intelligently" waive counsel to meet the burden of proof in a habeas corpus action). In Faretta v. California, the Supreme Court held that an adult defendant in a state criminal trial had a constitutional right to proceed without counsel if he or she voluntarily and intelligently elects to do so. 422 U.S. 806 (1975). By endorsing the adult "totality" test as the standard by which to evaluate juveniles' waivers of rights, Fare eroded Progressives' "protectionist" assumption that children differ from adults and that courts should treat them more solicitously. Fare, 442 U.S. at 725. Faretta and Fare allow juveniles to waive counsel, presume that youths possess the same degree of autonomy and competence as adult defendants, and permit and encourage youths to make legal decisions that ultimately redound to their detriment.
122. See Feld, Punishment, Treatment, supra note 4, at 903-07 (discussing the issues surrounding allowing jury trials in delinquency proceedings); Feld, supra note 73, at 1099-1108 (discussing the right to a jury trial and surrounding case precedents).
123. Beginning in the 1970s, many professional groups re-examined juvenile courts' status jurisdiction and most recommended limitations on the grounds for and intensity of judicial intervention, administrative reforms, or its elimination. See generally NATIONAL RESEARCH COUNCIL, NEITHER ANGELS NOR THIEVES: STUDIES IN DEINSTITUTIONALIZATION OF STATUS OFFENDERS (Joel F. Handler & Julie Zatz eds., 1982) [hereinafter NEITHER ANGELS NORTHIEVES];
124. National Council on Crime and Delinquency, Jurisdiction over Status Offenses Should be Removed from the Juvenile Court: A Policy Statement, 21 CRIME & DELINQ. 97 (1975).
125. A joint commission of the Institute of Judicial Administration and the American Bar Association, for example, proposed that "the present jurisdiction of the juvenile court over noncriminal behavior - the status offense jurisdiction - should be cut short and a system of voluntary referral to services provided outside the juvenile justice system adopted in its stead." INSTITUTE OF JUDICIAL ADMIN. & AMERICAN BAR ASS'N, JUVENILE JUSTICE STANDARDS RELATING TO NONCRIMINAL MISBEHAVIOR 2 (1982). Most reform proposals emphasized youths' voluntary participation in programs and services provided by personnel who are not associated with the juvenile justice process. Critics of status jurisdiction emphasize the negative effects of coercive intervention on noncriminal youths, their families, and the juvenile court itself.
126. See, e.g., H. TED RUBIN, JUVENILE JUSTICE: POLICY, PRACTICE, AND LAW 56-58 (2d ed. 1985);
127. Al Katz & Lee E. Teitelbaum, PINS Jurisdiction, the Vagueness Doctrine, and the Rule of Law, 53 IND. L.J. 1, 27-33 (1977-1978);
128. Irene Merker Rosenberg, Juvenile Status Offender Statutes - New Perspectives on an Old Problem, 16 U.C. DAVIS L. REV. 283, 283-85 (1982);
129. R. Hale Andrews, Jr. & Andrew H. Cohn, Note, Ungovernability: The Unjustifiable Jurisdiction, 83 YALE L.J. 1383, 1405-07 (1974). Some critics argue that status intervention is a one-sided effort by parents and courts to impose a particular standard of behavior on young people, especially young women.
130. See, e.g., MEDA CHESNEYLIND & RANDALL G. SHELDEN, GIRLS, DELINQUENCY, AND JUVENILE JUSTICE 124-91 (2d ed. 1998);
131. Irene M. Rosenberg & Yale L. Rosenberg, The Legacy of the Stubborn and Rebellious Son, 74 MICH. L. REV. 1097, 1128-29 (1976). Others characterize it as a chimera of assistance that promises impoverished parents access to social and clinical resources but consigns problem children to custodial institutions. See Andrews & Cohn, supra, at 1393-97. On the other hand, defenders of juvenile courts' jurisdiction over noncriminal youths' misconduct emphasize that the state cannot remain indifferent to family dysfunction, truancy, or premature and self-injurious autonomy, and that the community needs some mechanism to intervene authoritatively when a child is "out of control."
132. See Lindsay G. Arthur, Status Offenders Need a Court of Last Resort, 57 B.U. L. REV. 631, 631-38 (1977);
133. Judge Leonard P. Edwards, The Juvenile Court and the Role of the
134. The re-examination of status offenses accompanied the decline of the rehabilitative ideal and the increased procedural formality associated with delinquency proceedings, and reflected disillusionment with juvenile courts' treatment of noncriminal youths. See, e.g., DAVID P. FARRINGTON ET AL., UNDERSTANDING AND CONTROLLING CRIME: TOWARD A NEW RESEARCH STRATEGY 127-29 (1986) ("[I]t no longer appeared justifiable to include status offenders in the same process as those whose delinquent acts were also crimes for adults");
135. LaMar T. Empey, Juvenile Justice Reforms: Diversion, Due Process, and Deinstitutionalization, in PRISONERS IN AMERICA 13 (Lloyd E. Ohlin ed., 1973);
136. Frank Helium, Juvenile Justice: The Second Revolution, 25 CRIME & DELINQ. 299, 300-05 (1979). Congress passed the Federal Juvenile Justice and Delinquency Prevention (JJDP) Act, 42 U.S.C. §§ 5601-67 (1994), in 1974 that required states, as a condition of receiving federal formula grants, to initiate a process to remove noncriminal offenders from secure detention and correctional facilities and to submit a plan designed to ensure that "within three years ... juveniles who are charged with or who have committed offenses that would not be criminal if committed by an adult . . . shall not be placed in secure detention facilities or secure correctional facilities." 42 U.S.C. § 5633(a)(12)(A) (1994). Legal restrictions on the co-mingling of status with delinquent offenders in secure detention and correctional facilities provided the impetus to divert some status offenders from juvenile courts and to decarcerate those who remained in the system.
137. See, e.g., Michael Sosin, Deinstitutionalization of Status Offenders and Dependent and Neglected Youth in Wisconsin, in NEITHER ANGELS NOR THIEVES, supra note 78, at 513, 515-18. Ironically, although reformers intended diversion to enhance youths' autonomy and to reduce state intervention, instead the innovation provided a mechanism to extend informal supervision further into the normal adolescent population and to widen the nets of social control.
138. See generally Malcolm W. Klein, Deinstitutionalization and Diversion of Juvenile Offenders: A Litany of Impediments, 1 CRIME & JUST. 145 (1979) (discussing the "net-widening" impact of diversion reforms);
139. Kenneth Polk, Juvenile Diversion: A Look at the Record, 30 CRIME & DELINQ. 648 (1984). Diversion provided a rationale to shift discretion from the core of the juvenile justice process to its periphery. In his comprehensive study of the history of regulating "stubborn children," Sutton concludes that diversion "sanctified and encouraged a strategy for circumventing due process, assured that programs would stay in the discretionary hands of local officials, and encouraged the privatization of long-term social control." SUTTON, supra note 10, at 215.
140. The JJDP mandate to deinstitutionalize status offenders made it more difficult to confine noncriminal youths in traditional delinquency institutions. See supra note 79. As a result, courts may divert or refer and parents "voluntarily" may commit many troublesome youths to psychiatric and chemical dependency facilities in the private sector with fewer procedural safeguards available than to youths charged with delinquency. See Parham v. J.R., 442 U.S. 584, 620 (1979). These private treatment facilities comprise a parallel, "hidden system" of social control for youths, and a growth industry for service providers. See Lois A. Weithorn, Mental Hospitalization of Troublesome Youth: An Analysis of Skyrocketing Admission Rates, 40 STAN. L. REV. 773, 808-13 (1988). Many troublesome youths - especially females and children of middle-class families with mental health or chemical dependency medical insurance benefits - whom juvenile courts previously dealt with as status offenders now enter private mental health or substance abuse treatment facilities, which can provide levels of security comparable to those in public institutions.
141. See IRA M. SCHWARTZ, (IN)JUSTICE FOR JUVENILES 136-39 (1989); see also Weithorn, supra, at 814-20.
142. See HOWARD SNYDER & MELISSA SICKMUND, U.S. DEP'T OF JUSTICE, JUVENILE OFFENDERS AND VICTIMS: A NATIONAL REPORT 154 (1995).
143. Compare id. at (noting that juvenile court judges nationally transferred about 11,700 juveniles) and U.S. GEN. ACCOUNTING OFFICE, JUVENILE JUSTICE: JUVENILES PROCESSED IN CRIMINAL COURT AND CASE DISPOSITIONS 10 (1995) (same)
144. with Donna M. Bishop & Charles E. Frazier, Transfer of Juveniles to Criminal Court: A Case Study and Analysis of Prosecutorial Waiver, 5 NOTRE DAME J.L. ETHICS & PUB. POL'Y 281, 288 (1991) (noting annual rise in number of prosecutorial waivers).
145. PATRICIA TORBET ET AL., U.S. DEP'T OF JUSTICE, STATE RESPONSES TO SERIOUS AND VIOLENT JUVENILE CRIME: RESEARCH REPORT 3-9 (1996).
146. See generally id. ; Feld, supra note 2.
147. See FELD, supra note 5, at 106-07; Alfred Blumstein, Youth Violence, Guns, and the Illicit-Drug Industry, 86 J. CRIM. L. & CRIMINOLOGY 10, 26-29 (1995); see also MASSEY & DENTON, supra note 38, at 174.
148. The post-industrial transition from a manufacturing to a service and information economy adversely affected the ability of semi-skilled high school graduates economically to sustain "the American Dream." See KATZ, supra note 49, at 128-29. The emphasis on knowledge and information produced a widening earnings gap between high school and college graduates as the better-educated got richer and the less well-educated got poorer. See id. at 129-31. In less than 20 years, as a result of structural economic changes, the gap between high school and college graduates' earnings widened both because the educated earn more and the uneducated earn less. See WILLIAM JULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF THE NEW URBAN POOR 25-34 (1996). As recently as 1975, college graduates earned only about 25% more than did high school graduates.
149. See NATIONAL RESEARCH COUNCIL, LOSING GENERATIONS: ADOLESCENTS IN HIGH-RISK SETTINGS 26 (1993) (noting differences by race, gender, and education level). Two decades later, the average earning difference was almost 100%, both because college graduates' earning capacity increased and high school graduates' real earning capacity decreased about 25%.
150. See CHRISTOPHER JENCKS, RETHINKING SOCIAL POLICY: RACE, POVERTY, AND THE UNDERCLASS 126 (1992); NATIONAL RESEARCH COUNCIL, supra, at 25.
151. See KATZ, supra note 49, at 128.
152. Black migration from the rural South to the urban North in the 1920s and 1930s began to transform the larger older cities. See MASSEY & DENTON, supra note 38, at 21; see also id. at 19-59. Black Americans became increasingly urban, and whites simultaneously began to move from cities to the suburbs. Between the end of World War II and 1960, about one-third of all African-Americans who remained in the South migrated to other parts of the country and the majority of all blacks lived in central cities. See id. at 18. In the 1950s and 1960s, urban renewal and highway construction disrupted and destroyed many urban black communities. See supra notes 49-52 and accompanying text. Massey and Denton argue that public policies and private institutional arrangements - federal highway, mortgage, and housing policies, real estate sales practices, bank mortgage loan practices, and insurance industry decisions - created and sustain racial segregation, amplify and exacerbate the harmful consequences of concentrated poverty, and adversely affect the economic and social welfare of black Americans. See MASSEY & DENTON, supra note 38, at 8. They argue: residential segregation has been instrumental in creating a structural niche within which a deleterious set of attitudes and behaviors - a culture of segregation - has arisen and flourished. Segregation created the structural conditions for the emergence of an oppositional culture that devalues work, schooling, and marriage and that stresses attitudes and behaviors that are antithetical and often hostile to success in the larger economy. . . . Residential segregation is the institutional apparatus that supports other racially discriminatory processes and binds them together into a coherent and uniquely effective system of racial subordination. Id. at 8. Similarly, Robert J. Sampson and Janet L. Lauritsen attribute the negative effects of concentrated poverty to deliberate public policies to "contain" and isolate minorities. Opposition from organized community groups to the building of public housing in "their" neighborhoods, de facto federal policy to tolerate extensive segregation against blacks in urban housing markets, and the decision by local governments to neglect the rehabilitation of existing residential units . . . have led to massive, segregated housing projects which have become ghettos for minorities and the disadvantaged. The cumulative result is that even given the same objective socioeconomic status, blacks and whites face vastly different environments in which to live, work, and raise their children. Robert J. Sampson & Janet L. Lauritsen, Racial and Ethnic Disparities in Crime and Criminal Justice in the United States, 21 CRIME & JUST. 311, 338 (1997). Thus, racial segregation, cultural isolation, and concentration of poverty constitute the cumulative community structural consequences of a host of disparate public policy decisions.
153. Macro-structural economic changes have had a cumulative, deleterious impact on urban minority residents. See WILSON, supra note 86, at 25-100. Job losses have occurred primarily in those higher-paying lower-skilled manufacturing industries to which urban minorities previously had greater access, and job growth has occurred in the suburbs and in sectors of the economy that require levels of education beyond that possessed by many urban minority workers. See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 100-02 (1987). As a result of the economic, spatial, and racial reorganization of cities, the past several decades have witnessed the emergence of an urban "underclass" living in concentrated poverty and in racial, social, and cultural isolation.
154. See generally CHRISTOPHER JENCKS & PAUL E. PETERSON, THE URBAN UNDERCLASS (1991); WILSON, supra, at 3;
155. Michael B. Katz, The Urban "Underclass" as a Metaphor of Social Transformation, in THE "UNDERCLASS" DEBATE: VIEWS FROM HISTORY 3 (Michael B. Katz ed., 1993). Three decades ago, then-Assistant Secretary of Labor Daniel Patrick Moynihan warned in The Negro Family of the adverse impact of male unemployment in the urban African-American community.
156. U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION (1965),
157. reprinted in THE MOYNIHAN REPORT AND THE POLITICS OF CONTROVERSY 39-124 (Lee Rainwater & William L. Yancey eds., 1967). Since Moynihan issued his prophetic warnings, many of those dire predictions have come to pass: black male unemployment, out-of-wedlock childbirth, racial isolation, concentrated poverty, and urban violent crime have increased. See MASSEY & DENTON, supra note 38, at 117-18; WILSON, supra, at 90-92. Wilson attributes the decline of two-parent black families to the structural transformation of inner cities that reduced young black males' employment prospects and increased rates of out-of-wedlock childbirth among poor black women. See WILSON, supra, at 72-84; WILSON, supra note 86, at 87-110. Since the mid-1960s, the passage of civil rights legislation enabled many middle-class blacks to take advantage of increased economic opportunities and to leave the ghettoes. See MASSEY & DENTON, supra note 38, at 7-9. Their mobility deprived the urban minority communities of the human resources necessary for social stability and amplified the effects of concentrated poverty and racial isolation among the "truly disadvantaged" who remained. See WILSON, supra, at 56-57. Simultaneously, structural changes decreased the demands for unskilled and semi-skilled labor in the manufacturing sectors that previously provided black men with little formal education with access to higher wage jobs. See id. at 39-46. The deindustrialization of the inner urban core reduced the pool of "marriageable" black men who could support a family.
158. MARIAN WEIGHT EDELMAN, FAMILIES IN PERIL: AN AGENDA FOR SOCIAL CHANGE 13-14 (1987). As marriage to unemployed or unemployable black males became less attractive, unwed child-bearing and female-headed families proliferated among poor black women. See id. at 14. The decisions by young black women not to marry the fathers of their children account for virtually all the increase in the number of children in female-headed households and in poverty. See id. at 10-16.
159. See ZIMRING, supra note 1, at 3-16; Blumstein, supra note 85, at 13-20; see also Alfred Blumstein & Daniel Cork, Linking Gun Availability to Youth Gun Violence, 59 LAW & CONTEMP. PROBS. 5, 6-12 (1996);
160. Philip J. Cook & John H. Laub, The Unprecedented Epidemic in Youth Violence, 24 CRIME & JUST. 27, 51-58 (1998); infra note 107.
161. Cf. BECKETT, supra note 56, at 58, 84-85.
162. See ZIMRING, supra note 1, at 3-4.
163. See BECKETT, supra note 56, at 58, 84-85.
164. See id. at 31-43; see also FELD, supra note 5, at 197-202.
165. See FELD, supra note 5, at 197-202.
166. See id.
167. See TORBET ET AL., supra note 83, at 59-61; Blumstein, supra note 85, at 32-36; Feld, supra note 2, at 192-95.
168. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS: 1993, at 447 (Kathleen Maguire & Ann L. Pasture eds., 1994).
169. See MELISSA SICKMUND ET AL., U.S. DEP'T OF JUSTICE, JUVENILE OFFENDERS AND VICTIMS: 1997 UPDATE ON VIOLENCE 13 (1997).
170. See id.
171. See id at 12.
172. See id.
173. See id. at 13.
174. See supra notes 90-100 and accompanying text.
175. See FELD, supra note 5, at 207-08; ZIMRING, supra note 1, at 89-106; FRANKLIN ZIMRING & GORDON HAWKINS, CRIME IS NOT THE PROBLEM: LETHAL VIOLENCE IN AMERICA 106-23 (1997);
176. Franklin Zimring, Kids, Guns, and Homicide: Policy Notes on an Age-Specific Epidemic, 59 LAW & CONTEMP. PROBS. 25, 29 (1996) [hereinafter Zimring, Kids, Guns].
177. Zimring, Kids, Guns, supra note 105, at 29.
178. See ZIMRING, supra note 1, at 17-30; see also Blumstein, supra note 85, at 16-22; Blumstein & Cork, supra note 90, at 15-16. Alfred Blumstein, supra note 85, at 29-32, analyzed these changing patterns of age- and race-specific homicide rates and attributed the dramatic increase in youth homicides to the crack cocaine drug industry that emerged in large cities during the mid- to late-1980s. The low price and addictive properties of "crack" increased the numbers of buyers and weekly transactions, and thereby increased the number of sellers to accommodate the demand. See id. at 29-30. Drug distribution attracted youths because juveniles faced lower risks of severe penalties than do adults, and especially induced young urban, African-American males who lacked alternative economic opportunities. See Blumstein & Cork, supra note 90, at 9-10. Youths in the drug industry take more risks than would adults and arm themselves for self-protection and to resolve disputes. The ready availability of guns abets the prevalence of lethal violence because those involved in illegal markets cannot resolve their disputes through formal mechanisms. See NATIONAL RESEARCH COUNCIL, UNDERSTANDING AND PREVENTING VIOLENCE 256-60 (Albert J. Reiss & Jeffrey A. Roth eds., 1993). Although guns constitute a "tool of the trade" in the drug industry, their proliferation and diffusion within the wider youth population for self-defense and status also has contributed to the escalation of homicides. See Blumstein & Cork, supra note 90, at 11-12. As more young men become increasingly fearful of each other and arm themselves defensively, both the killings and the fear expands. See Cook & Laub, supra note 90, at 58. The increased use of guns to commit murders accounted for virtually all of the increase in the homicide rate for older youths in the past decade. See ZIMRING & HAWKINS, supra note 105, at 107-10. The lucrative and violent drug industry, in turn, further accelerated the deterioration of urban neighborhoods, hastened "the exodus of stable families," undermined the authority of community leaders, "weakened inhibitions against violence," and provided illicit role models to attract children and adolescents into crime. NATIONAL RESEARCH COUNCIL, supra note 86, at 67-68.
179. FELD, supra note 5, at 208.
180. See FOX, supra note 1, at 3, 15; ZIMRING, supra note 1, at 60-65.
181. See BECKETT, supra note 56, at 40-43.
182. See id. at 30-43.
183. See BECKETT, supra note 56, at 25; FELD, supra note 5, at 90.
184. See FELD, supra note 5, at 90.
185. Id.
186. See id. at 89-90; TONRY, supra note 62, at 94-95.
187. See BECKETT, supra note 56, at 83-88.
188. See id at 62-78.
189. See id.
190. See TORBET ET AL., supra note 83, at 60.
191. See id.; see also Feld, Juvenile Waiver Statutes, supra note 4, at 75-81.
192. See Feld, Juvenile Waiver Statutes, supra note 4, at 79.
193. See id. at 80.
194. See TORBET ET AL., supra note 83, at 59-61; Feld, Juvenile Waiver Statutes, supra note 4, at 503-19; Feld, supra note 73, at 1024-34.
195. See Feld, supra note 2, at 212-29; see also Stanford v. Kentucky, 492 U.S. 361 (1989).
196. See, e.g., Feld, supra note 2, at 202-05; Marcy Rasmussen Podkopacz & Barry C. Feld, The End of the Line: An Empirical Study of Judicial Waiver, 86 J. CRIM. L. & CRIMINOLOGY 449, 485-89 (1996);
197. Marcy Rasmussen Podkopacz & Barry C. Feld, Judicial Waiver Policy and Practice: Persistence, Seriousness and Race, 14 LAW & INEQ. J. 73, 156-65 (1995).
198. See Feld, supra note 2, at 205-15.
199. See, e.g., MINN. STAT. § 260.126 (1998), amended by Juvenile Court Act, ch. 139, § 12, 1999 Minn. Laws § 260B.130; TORBET ET AL., supra note 83, at 11-14; Feld, supra note 2, at 239-43; Feld, supra note 73, at 1038-51.
200. See TORBET ET AL., supra note 83, at 59-61; U.S. GENERAL ACCOUNTING OFFICE, supra note 82, at 1, 19-20.
201. See generally Feld, Punishment, Treatment, supra note 4 (analyzing changes in juvenile justice sentencing laws and practices); Feld, supra note 2, at 220-39;
202. Julianne P. Sheffer, Serious and Habitual Juvenile Offender Statutes: Reconciling Punishment and Rehabilitation Within the Juvenile Justice System, 48 VAND. L. REV. 479 (1995).
203. See supra notes 16-33 and accompanying text.
204. See supra notes 24-33 and accompanying text.
205. See supra notes 24-33 and accompanying text.
206. 403 U.S. 528, 551 (1971).
207. See, e.g., FLA. STAT. ANN. § 985.01(1)(b) (West Supp. 1999) (noting that "[t]o ensure the protection of society," a child should be given "the most appropriate control, discipline, punishment, and treatment . . . consistent with the seriousness of the act committed").
208. See Feld, Punishment, Treatment, supra note 4, at 842-47;
209. see also Martin Gardner, Punishment and Juvenile Justice: A Conceptual Framework for Assessing Constitutional Rights of Youthful Offenders, 35 VAND. L. REV. 791, 793-95 (1982);
210. Linda Giardino, Statutory Rhetoric: The Reality Behind Juvenile Justice Policies in America, 5 J.L. & POL'Y 223, 228-46 (1997) (arguing that despite the punitive trend, states should be able to create an effective juvenile justice system).
211. See TORBET ET AL., supra note 83, at 14-15; Feld, supra note 2, at 224-28.
212. See TORBET ET AL., supra note 83, at 14-15; Sheffer, supra note 129, at 500-06.
213. See, e.g., WASH. REV. CODE ANN. § 13.40.010(2)(d) (West 1999); Feld, Punishment, Treatment, supra note 4, at 850-79; Feld, supra note 73, at 1083-94.
214. See TORBET ET AL., supra note 83, at 14-15; Sheffer, supra note 129, at 489-92.
215. TORBET ET AL., supra note 83, at 14.
216. See SUSAN GUARINO-GHEZZI & EDWARD J. LOUGHRAN, BALANCING JUVENILE JUSTICE 139-43 (1996);
217. Martin L. Forst & Martha-Elin Blomquist, Cracking Down on Juveniles: The Changing Ideology of Youth Corrections, 5 NOTRE DAME J.L. ETHICS & PUB. POL'Y 323, 345-50 (1991).
218. See Feld, supra note 2, at 222-32.
219. See generally Donna M. Bishop & Charles E. Frazier, Race Effects in Juvenile Justice Decision-Making: Findings of a Statewide Analysis, 86 J. CRIM. L. & CRIMINOLOGY 392 (1996) (analyzing effects of race in juvenile justice);
220. Jeffrey Fagan et al., Blind Justice? The Impact of Race on the Juvenile Justice Process, 33 CRIME & DELINQ. 224 (1987) (same);
221. Belinda R. McCarthy & Brent L. Smith, The Conceptualization of Discrimination in the Juvenile Justice Process: The Impact of Administrative Factors and Screening Decisions on Juvenile Court Dispositions, 24 CRIMINOLOGY 41 (1986) (analyzing the impact of race, sex, and social class on juvenile court dispositions).
222. See MATZA, supra note 21, at 120-25.
223. See ROBERT EMERSON, JUDGING DELINQUENTS: CONTEXT AND PROCESS IN JUVENILE COURT 36-37 (1969); MATZA, supra note 21, at 120-25.
224. See generally AARON CICOUREL, THE SOCIAL ORGANIZATION OF JUVENILE JUSTICE (1968). One ethnographic study observed that: juvenile court decision-making comes to be pervaded by a sense of vulnerability to adverse public reaction for failing to control or restrain delinquent offenders. . . . [Fear of scrutiny and criticism increases pressures] to impose maximum restraints on the offender - in most instances, incarceration. Anything less risks immediate criticism. But more than this, it also exposes the court to the possibility of even stronger reaction in the future. For given any recurrence of serious illegal activity, former decisions that can be interpreted as "lenient" become difficult to defend.
225. Robert M. Emerson, Role Determinants in Juvenile Court, in HANDBOOK OF CRIMINOLOGY 621, 624 (Daniel Glaser ed., 1974). Other court analysts emphasize that the juvenile court judge is ultimately responsible and responsive to the public: He will have to explain . . . why the 17-year-old murderer of an innocent matron was allowed to roam the streets, on probation, when just last year he was booked for mugging. . . . Somehow, an invoking of the principle of individualized justice and a justification of mercy on the basis of accredited social-work theory hardly seems appropriate on these occasions. MATZA, supra note 21, at 122. By sentencing serious juvenile offenders more formally and restrictively, judges can deflect unfavorable retrospective scrutiny and political criticism. Offense criteria provide juvenile court judges with an efficient organizational tool with which to classify the "risks" that youths pose to the public and, by way of "scandal," to the court. Because juvenile courts routinely collect information about present offense and prior records, these factors provide a simple rule-of-thumb by which to make, defend and legitimate sentencing decisions. One study reported that, despite claims of individualization, juvenile court judges appeared to base their sentencing decisions primarily on youths' present offense and prior record: [C]omparisons of juvenile and adult sentencing practices suggest that juvenile and criminal courts in California are much more alike than statutory language would suggest, in the degree to which they focus on aggravating circumstances of the charged offense and the defendant's prior record in determining the degree of confinement that will be imposed.
226. PETER GREENWOOD ET AL., YOUTH CRIME AND JUVENILE JUSTICE IN CALIFORNIA 51 (1983).
227. See generally CICOUREL, supra note 145.
228. The second consistent finding from juvenile court sentencing research is that, after controlling for the present offense and prior record, individualized sentencing discretion is often synonymous with racial discrimination. See KIMBERLY KEMPF-LEONARD ET AL., MINORITIES IN JUVENILE JUSTICE 73 (1995);
229. CARL POPE & WILLIAM FEYERHERM, MINORITIES IN THE JUVENILE JUSTICE SYSTEM 2-3 (1992);
230. Barry Krisberg et al., The Incarceration of Minority Youth, 33 CRIME & DELINQ. 173, 185 (1987). But see McCarthy & Smith, supra note 143, at 49 (noting "[m]ost studies have concluded race is not a significant factor"). A review of earlier juvenile court sentencing studies found "clear and consistent evidence of a racial differential operating at each decision level. Moreover, the differentials operate continuously over various decision levels to produce a substantial accumulative racial differential which transforms a more or less heterogeneous racial arrest population into a homogeneous institutionalized black population."
231. Allen E. Liska & Mark Tausig, Theoretical Interpretations of Social Class and Racial Differentials in Legal Decision-Making for Juveniles, 20 SOC. Q. 197, 205 (1979). A review of juvenile justice sentencing research two decades later reached the same conclusion: [I]t is in the juvenile justice system that race discrimination appears most widespread - minorities (and youth in predominantly minority jurisdictions) are more likely to be detained and receive out-of-home placements than whites regardless of "legal" considerations. Because processing in the juvenile justice system is deeply implicated in the construction of a criminal (or "prior") record, experiences as a juvenile serve as a major predictor of future processing. Sampson & Lauritsen, supra note 88, at 363.
232. 42 U.S.C. § 5633(a)(16) (1994) (requiring states receiving federal funds to ensure equitable treatment on the basis inter alia of race).
233. Discretionary decisions at various stages of the justice process amplify racial disparities as minority youths proceed through the system and result in more severe dispositions than for comparable white youths. See BARRY KRISBERG & JAMES AUSTIN, REINVENTING JUVENILE JUSTICE 116-34 (1993); McCarthy & Smith, supra note 143, at 58. The research emphasizes the importance of analyzing juvenile justice decision-making as a multi-stage process rather than focusing solely on the final dispositional decision. For example, dramatic increases in referral rates of minority youths to juvenile courts in seventeen states resulted in corresponding increases in detention and institutional placement.
234. See Edmund F. McGarrell, Trends in Racial Disproportionality in Juvenile Court Processing: 1985-1989, 39 CRIME & DELINQ. 29, 46 (1993). Juvenile courts detain black youths at higher rates than they do white youths charged with similar offenses, and detained youths typically receive more severe sentences.
235. See KRISBERG & AUSTIN, supra, at 125-28; M.A. Bortner & Wornie L. Reed, The Preeminence of Process: An Example of Refocused Justice Research, 66 SOC. SCI. Q. 413, 421 (1985);
236. Charles E. Frazier & J.K Cochran, Detention of Juveniles: Its Effects on Subsequent Juvenile Court Processing Decisions, 17 YOUTH & SOC'Y 286, 293 (1986). Most recent studies confirm that minority youths receive more severe dispositions than do white youths even after controlling for relevant legal variables. See, e.g., KRISBERG & AUSTIN, supra, at 125-28, While offense criteria affect initial screening, detention, and charging decisions, as cases progress through the adjudicatory process, youths' race affects their dispositions and minority youths receive more severe sentences. See, e.g., id. at 118-34; Bishop & Frazier, supra note 143, at 405-06; Fagan et al., supra note 143, at 250-51.
237. See Carl E. Pope, Racial Disparities in Juvenile Justice System, OVERCROWDED TIMES, Dec. 1994, at 5.
238. See Carl E. Pope & William H. Feyerherm, Minority Status and Juvenile Justice Processing: An Assessment of the Research Literature (Part 1), 22 CRIM. JUST. ABSTRACTS 327, 333-35 (1990);
239. Carl E. Pope & William H. Feyerherm, Minority Status and Juvenile Justice Processing: An Assessment of the Research Literature (Part 2), 22 CRIM. JUST. ABSTRACTS 527, 528 (1990).
240. See supra notes 143 & 151 and accompanying text.
241. See Krisberg et al., supra note 147, at 84-90.
242. See SNYDER & SICKMUND, supra note 81, at 166.
243. See id.
244. See FELD, supra note 76, at 158-202; SNYDER & SICKMUND, supra note 81, at 136-37. See generally Barry C. Feld, Justice by Geography: Urban, Suburban, and Rural Variations in Juvenile Justice Administration, 82 J. CRIM. L. & CRIMINOLOGY 156 (1991).
245. See FELD, supra note 76, at 198-200; Bishop & Frazier, supra note 143, at 404.
246. See SNYDER & SICKMUND, supra note 81, at 101.
247. See generally Robert J. Sampson & John H. Laub, Structural Variations in Juvenile Court Processing: Inequality, the Underclass, and Social Control, 27 L. & SOC'Y REV. 285 (1993).
248. See supra note 33 and accompanying text.
249. In a system of individualized justice, "parental sponsorship" may qualify or modify traditional criminal sentencing principles. See MATZA, supra note 21, at 124-25. Juvenile court personnel whom researchers questioned about racial disparities in case processing responded that "delinquent youths from single-parent families and those from families incapable of (or perceived to be incapable of) providing good parental supervision are more likely to be referred to court and placed under state control." Bishop & Frazier, supra note 143, at 409. They felt that even though black youths' social circumstances placed them at a systematic disadvantage because larger proportions came from single-parent households, courts properly considered these factors when they screened and sentenced youths. See id. If one subscribes to a utilitarian or treatment ideology, then these kinds of variations in youths' personal backgrounds and their "real needs" should affect case outcomes.
250. See SIMON I. SINGER, RECRIMINALIZING DELINQUENCY: VIOLENT JUVENILE CRIME AND JUVENILE JUSTICE REFORM 78-79 (1996); see also Bishop & Frazier, supra note 143, at 408.
251. The Supreme Court in Gault noted the disjunctions between rehabilitative rhetoric and the punitive reality of delinquency confinement when it granted juveniles some procedural safeguards: [H]owever euphemistic the title, a "receiving home" or an "industrial school" for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes "a building with whitewashed walls, regimented routine and institutional hours . . . ." Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and "delinquents" confined with him for anything from waywardness to rape and homicide. In re Gault, 387 U.S. 1, 27 (1967) (footnote omitted) (quoting Holmes' Appeal, 379 Pa. 599, 616 (1954)). Since Gault, the titles of some of the criminological and journalistic studies of juvenile correctional facilities reveal their content: see, for example, CLEMENS BARTOLLAS ET AL., JUVENILE VICTIMIZATION: THE INSTITUTIONAL PARADOX 259 (1976) (characterizing Ohio juvenile correctional system as "anti-therapeutic, anti-rehabilitative, and as exploitative and demeaning of keepers and kept alike");
252. BARRY C. FELD, NEUTRALIZING INMATE VIOLENCE: JUVENILE OFFENDERS IN INSTITUTIONS 160 (1977) (describing violent and punitive facilities in which staff and other residents abused inmates);
253. STEVEN LERNER, BODILY HARM: THE PATTERN OF FEAR AND VIOLENCE AT THE CALIFORNIA YOUTH AUTHORITY 12 (1986) (finding that "a young man convicted of a crime cannot pay his debt to society safely. The hard truth is that the CYA staff cannot protect its inmates from being beaten or intimidated by other prisoners.");
254. KENNETH WOODEN, WEEPING IN THE PLAYTIME OF OTHERS: AMERICA'S INCARCERATED CHILDREN (1976). An evaluation of Louisiana training schools described institutions populated predominantly by black juveniles whom guards regularly physically abused, kept in isolation for long periods of time, restrained with handcuffs, and confined in "punitive" facilities surrounded by high chain-link fences topped with coiled razor wire.
255. See HUMAN RIGHTS WATCH, CHILDREN IN CONFINEMENT IN LOUISIANA 1, 20-23, 27-34 (1995);
256. see also DALE PARENT ET AL., U.S. DEP'T OF JUSTICE, CONDITIONS OF CONFINEMENT: JUVENILE DETENTION AND CORRECTIONS FACILITIES 21-157 (1994) (describing endemic institutional overcrowding in larger medium or maximum security facilities which confined inmates with perimeter fences, locked internal security, or both). As states sentenced more youths to juvenile institutions, they increased their prison-like character, relied more extensively on fences and walls to maintain perimeter security, and used surveillance equipment to provide internal security. See SNYDER & SICKMUND, supra note 81, at 171-72.
257. See Feld, supra note 2, at 232-37. See generally PARENT ET AL., supra note 163.
258. See PARENT ET AL., supra note 163, at 43-63.
259. See id. at 61-62; see also SNYDER & SICKMUND, supra note 81, at 170.
260. States confine more than three-quarters of all delinquents in public training schools and institutions. See SNYDER & SICKMUND, supra note 81, at 165. Evaluation research indicates that incarcerating young offenders in large, congregate juvenile institutions does not effectively rehabilitate and may affirmatively harm them. See, e.g., BARTOLLAS ET AL., supra note 163, at 261; FELD, supra note 163, at 196-97; PETER W. GREENWOOD & FRANKLIN E. ZIMRING, ONE MORE CHANCE: THE PURSUIT OF PROMISING INTERVENTION STRATEGIES FOR CHRONIC JUVENILE OFFENDERS 40 (1985) (noting that most training schools "fail to reform" and "make no appreciable reduction in the very high recidivism rates, on the order to 70 to 80 percent");
261. OFFICE OF THE MINN. LEGISLATIVE AUDITOR, RESIDENTIAL FACILITIES FOR JUVENILE OFFENDERS 71-73 (1995) (reporting that the rates of recidivism at Minnesota juvenile correctional facilities in 1985 and 1991 were between 53% and 77%);
262. JOHN C. STEIGER & CARY DIZON, REHABILITATION, RELEASE, AND REOFFENDING: A REPORT ON THE CRIMINAL CAREERS OF THE DIVISION OF JUVENILE REHABILITATION "CLASS OF 1982," at 8 (1991) (reporting that more than two thirds (67.9%) of youths released from Washington juvenile facilities in 1982 reoffended within two years). The recent changes in juvenile court sentencing legislation exacerbate the deleterious side effects associated with institutional overcrowding.
263. See Barry Krisberg et al., The Watershed of Juvenile Justice Reform, 32 CRIME & DELINQ. 5, 32-36 (1986). Youths confined under "get tough" sentencing laws to long terms often comprise the most serious and chronic delinquent population. See id. at 17-23. Yet the institutions that house them often suffer from overcrowding, limited physical mobility, and inadequate program resources. See generally PARENT ET AL., supra note 163. Overcrowding also contributes to higher rates of inmate violence and suicide. See id. at 93-122. These juvenile correctional "warehouses" exhibit most of the negative features of adult prisons and function as little more than youth prisons in which inmates "do time." See GREENWOOD & ZIMRING, supra, at 40. Large custodial institutions enable politicians to demonstrate their toughness, give the public a false sense of security, provide employment for correctional personnel, and minimize the demands placed on custodial staff to maintain institutional order, but they do little to improve the life-chances of troubled youths. See BERNARD, supra note 27, at 178.
264. See, e.g., D.A. Andrews et al., Does Correctional Treatment Work?: A Clinically Relevant and Psychologically Informed Meta-Analysis, 28 CRIMINOLOGY 369, 384 (1990) (describing positive effects when offenders received clinically appropriate psychological treatment);
265. Mark W. Lipsey, Juvenile Delinquent Treatment: A Meta-Analytic Inquiry into the Variability of Effects, in META-ANALYSIS FOR EXPLANATION: A CASEBOOK 97-98 (Thomas D. Cook et al. eds., 1992) (reporting positive treatment effects in intensive integrated programs);
266. Albert R. Roberts & Michael J. Camasso, The Effects of Juvenile Offender Treatment Programs on Recidivism: A Meta-Analysis of 46 Studies, 5 NOTRE DAME J.L. ETHICS & PUB. POL'Y 421, 437 (1991) (noting positive treatment effects from family therapy).
267. See Mark W. Lipsey & David B. Wilson, Effective Intervention for Serious Juvenile Offenders, in SERIOUS AND VIOLENT JUVENILE OFFENDERS: RISK FACTORS AND SUCCESSFUL INTERVENTIONS 313, 325-38 (Rolf Loeber & David Farrington eds., 1998);
268. Jeffrey Fagan, Social and Legal Policy Dimensions of Violent Juvenile Crime, 17 CRIM. JUST. & BEHAV. 93, 96-102 (1990).
269. See FELD, supra note 5, at 294-97.
270. See supra notes 16-33 and accompanying text (discussing inherent discriminatory practices within the Progressive juvenile court).
271. See GRUBB & LAZERSON, supra note 33, at 298-300; NATIONAL RESEARCH COUNCIL, supra note 86, at 48-56.
272. See, e.g., FELD, supra note 5, at 302-27 (analyzing modifications of criminal justice system necessary to accommodate younger offenders); Feld, supra note 6, at 96-115 (rationalizing formal recognition of youthfulness as a mitigating factor in sentencing younger offenders); Feld, Criminalizing Juvenile Justice, supra note 4, at 272-76 (comparing and contrasting juvenile and criminal procedures and advocating greater procedural safeguards for youth).
273. See Feld, supra note 6, at 125-29.
274. See infra notes 178-87 and accompanying text.
275. See generally ANDREW VON HIRSCH, CENSURE AND SANCTIONS (1993);
276. ANDREW VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS (1976).
277. See Feld, supra note 6, at 102-07.
278. See generally Elizabeth Cauffman & Laurence Steinberg, The Cognitive and Affective Influences on Adolescent Decision-Making, 68 TEMP. L. REV. 1763 (1995) thereinafter Cauffman & Steinberg, Adolescent Decision-Making];
279. Elizabeth S. Scott, Judgment and Reasoning in Adolescent Decisionmaking, 37 VILL. L. REV. 1607 (1992) [hereinafter Scott, Judgment and Reasoning];
280. Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137 (1997);
281. Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psycho-social Factors in Adolescent Decision Making, 20 LAW & HUM. BEHAV. 249 (1996) [hereinafter Steinberg & Cauffman, Maturity of Judgment].
282. See Lita Furby & Ruth Beyth-Marom, Risk Taking in Adolescence: A Decision-Making Perspective, 12 DEVELOPMENTAL REV. 1, 3 (1992);
283. Scott, Judgement and Reasoning, supra note 178, at 1610;
284. Steinberg & Cauffman, Maturity of Judgment, supra note 178, at 252.
285. See William Gardner, A Life-Span Rational Choice Theory of Risk Taking, in ADOLESCENT RISK TAKING 66, 67 (Nancy J. Bell & Robert W. Bell eds., 1993); Scott, supra note 178, at 1642-52; Steinberg & Cauffman, supra note 178, at 261-62.
286. See Scott, Judgment and Reasoning, supra note 178, at 1643-47.
287. See William Gardner & Janna Herman, Adolescents' AIDS Risk Taking: A Rational Choice Perspective, in NEW DIRECTIONS FOR CHILD DEVELOPMENT 17,25-26 (William Gardner et al. eds., 1990).
288. See, e.g., Cauffman & Steinberg, Adolescent Decision-Making, supra note 178, at 1780;
289. Steinberg & Cauffman, Maturity of Judgment, supra note 178, at 258-62.
290. See ZIMRING, supra note 1, at 78-81; Scott, Judgment and Reasoning, supra note 178, at 1643-44. Franklin Zimring notes the crucial role of "group offending" in adolescents' decisions to engage in crime: The ability to resist peer pressure is yet another social skill that is a necessary part of legal obedience and is not fully developed in many adolescents. . . . Most adolescent decisions to break the law or not take place on a social stage where the immediate pressure of peers urging the 'adolescent on is often the real motive for most teenage crime.
291. Franklin Zimring, Toward Jurisprudence of Youth Violence, 24 CRIME & JUST. 477, 488 (1998).
292. See Delbert S. Elliott & Scott Menard, Delinquent Friends and Delinquent Behavior: Temporal and Developmental Patterns, in DELINQUENCY AND CRIME: CURRENT THEORIES (J. David Hawkins ed., 1996); see also Zimring, supra note 184, at 490 (characterizing the tendency of the "You're Chicken" or "I Dare You" reason as why "young persons who would not commit crimes alone do so in groups. 'I dare you' is the reason that 'having delinquent friends' both precedes an adolescent's own involvement in violence and is a strong predictor of future violence").
293. See NATIONAL COMM'N ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN AGENDA FOR CHILDREN AND FAMILIES 343-66 (1991).
294. See Steinberg & Cauffman, Maturity of Judgment, supra note 178, at 252-67 (discussing how adolescents develop responsibility and perspective).
295. I have noted that: [a]ttempts to integrate subjective psychological explanations of adolescent behavior and personal responsibility into a youth sentencing policy cannot be done in a way that can be administered fairly without undermining the objectivity of the law. . . . For young criminal actors who possess at least some degree of criminal responsibility, relying on inherently inconclusive or contradictory psychiatric or clinical testimony to precisely tailor sanctions hardly seems worth the judicial burden and diversion of resources that the effort would entail. FELD, supra note 5, at 320.
296. See, e.g., id. at 315-27; Feld, supra note 6, at 115-23; Feld, Punishment, Treatment, supra note 4, at 896-902.
297. See Feld, supra note 2, at 239-43; Feld, supra note 73, at 1038-51.
298. See FELD, supra note 5, at 75-78; PLATT, supra note 11, at 176-81; ROTHMAN, supra note 11, at 10.
299. TONRY, supra note 62, at 163, observed that: [t]he resources of the criminal justice system are few. The answers to poverty, underemployment, and racial bias must be sought elsewhere, in schools and social welfare programs and broad-based social policies. To look to the criminal justice system to solve fundamental social problems would be foolish and doomed to fail. Similarly, I have observed that: [s]ocial welfare and legal policies to provide all young people with a hopeful future, to reduce racial and social inequality, and to remove guns from the hands of children require a public and political commitment to the welfare of children that extends far beyond the resources and competencies of any juvenile justice system. FELD, supra note 5, at 342.
300. See WILSON, supra note 89, at 91-94; see also DUNCAN LINDSEY, THE WELFARE OF CHILDREN 185-228 (1994); NATIONAL COMM'N ON CHILDREN, supra note 186, at 281-309
301. "[T]he diverse ways in which poverty harms children and adolescents, inflicts lasting damage, and limits their future potential points to the reduction of poverty as a key step toward improving the condition of many of the nation's youths." NATIONAL RESEARCH COUNCIL, supra note 86, at 236. More children live in poverty in the United States, one in five, than in any other western industrialized nation. See SYNDER & SICKMUND, supra note 81, at 7. Recent comparisons reveal that the rate of child poverty in the United States (20.4%) is more than double that of Canada (9.3%) and Australia (9.0%), and four to eight times greater than that of western European industrial democracies such as France (4.6%), Germany (2.8%) or Sweden (1.6%). See LINDSEY, supra note 193, at 222. According to the National Commission on Children: children are the poorest Americans. One in five lives in a family with an income below the federal poverty level. One in four infants and toddlers under the age of three is poor. Nearly 13 million children live in poverty, more than 2 million more than a decade ago. Many of these children are desperately poor; nearly 5 million live in families with incomes less than half the federal poverty level. NATIONAL COMM'N ON CHILDREN, supra note 186, at 24. Children comprise the largest age group in poverty and, as a result of macro-structural economic changes and family demographic forces since the 1970s, their situation has worsened. See KATZ, supra note 49, at 126-27. While 15% of children lived below the poverty line in 1974, by 1986, 21% of children did, a 40% increase. See id. at 127. Among the impoverished young, minority children disproportionately experience the most dire penury and personal circumstances. See id. As the international comparisons indicate, in an affluent society like the United States, the political economy, rather than natural scarcity, allocates resources; public policies produce social and economic inequalities and concentrated poverty. The growth in child poverty over the past two decades reflects deliberate policies to prefer certain interests groups and classes, for example, the elderly and wealthy, over others groups such as the young, the poor, or families raising children. See LINDSEY, supra note 193, at 197-228. The structure of the tax, health care, anti-discrimination, housing, minimum wage, child-care, employment, and macro-economic policies all comprise components of a child welfare and "family policy" and affect parents' ability to raise their children. See NATIONAL COMM'N ON CHILDREN, supra note 186, at 249-79.
302. See NATIONAL COMM'N ON CHILDREN, supra note 186, at 28-37.
303. See WILSON, supra note 89, at 128-39.
304. NATIONAL ADVISORY COMM'N ON CIVIL DISORDERS, supra note 55, at 1.
305. Id. at 22.
306. See MASSEY & DENTON, supra note 38, at 137-39; WILSON, supra note 89, at 21-26.