A Call to Abolishing the Juvenile Justice System
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Description
The continued existence of juvenile justice as a separate discretionary system is a mistake. The juvenile court has operated on a number of premises which are diametrically opposed to basic principles enbodied in the Constitution of the United States. Normally, the state, as a creation of the people, has limited powers to interfere with the liberty of individuals. Most of these limitations are ignored in juvenile justice because of the professed intention of the state. Punishment and the deprivation of liberty, we are told, are at most secondary purposes of bringing children before the court. But it is ludicrous to consider delinquency cases as involving anything other than traditional criminal justice concerns. The juvenile justice system appears to be little more than an excuse to circumvent basic rights of Americans. It is fair to say generally in the juvenile justice system that the liberty rights of children are not taken seriously, even when these rights have been established beyond cavil for adults. It is past time to look objectively at the juvenile justice system in the United States and to call for its complete abandonment. So long as there remains the vestige of a gloss of beneficence, the dangers of bringing too many children into the system are too great. In 1973, for example, a Texas federal court revealed that a juvenile court judge had found delinquent and ordered the incarceration of seventy-five children who had never even appeared in court. Additionally, hundreds of children were found confined in the juvenile prison system who had never been represented by counsel. Bear in mind that this is many years after Gault. A declaration of the United States Supreme Court that children have certain rights is, by itself, only words. For rights to have meaning, they must be respected by the trial courts, in this case, juvenile court judges. But these rights are not respected. And I suggest that this occurs for reasons other than the particular judges who sit in juvenile court. Instead, I believe that it reflects the prevailing view of the juvenile justice system itself. Because judges regard themselves primarily as helping needy children, they simply do not consider it necessary to give to children due process protection. After all, the judges are already protecting them. Lest some of you think that New York is exempted from this, consider the following. In New York State in 1974, outside of the city of New York, only 59% of the juveniles appearing before the Family Court in delinquency and PINS (status offense) cases were represented by counsel. More than two in five children are legally unrepresented in a state which required court assigned counsel fully five years before the Supreme Court mandated it in Gault. Even for the 59% represented by counsel, there is considerable room to question the quality of that representation. Outside of the city of New York where the Legal Aid Society represents juveniles in the Family Court with admirable and unquestioned zeal, almost all juveniles are represented by lawyers from the private bar who are assigned by the court and paid for each case. Many of these lawyers believe, as do many of the judges, that protecting a child's rights means finding a suitable placement for him without going through the formalities of a trial. Those lawyers who believe in representing their clients the way the Supreme Court contemplated it—preparing a defense and contesting the court's jurisdiction—face the risk of being removed from the list of lawyers to be assigned in the future. One excellent indication of the depth and quality of representation is the number of appeals taken from adverse rulings in the trial court. Outside of the city of New York very few appeals are taken each year. Because of the star chamber quality of the Family Court, outsiders are not able to directly monitor the quality of representation children receive in this state. But few cases are tried in any event. Instead, most matters are settled in the judge's chambers with counsel and the court agreeing on what is best for the juvenile. All of this occurs for one central reason-the myth of beneficence. Even as there is now a decided trend in this country to officially recognize punishment as a bona fide purpose of juvenile courts, there nonetheless remains a smugness on the part of juvenile court officials that whatever they do to children is for the children's own good.
Source Publication
Cases and Materials on Modern Juvenile Justice
Source Editors/Authors
Sanford J. Fox
Publication Date
1981
Edition
2
Recommended Citation
Guggenheim, Martin, "A Call to Abolishing the Juvenile Justice System" (1981). Faculty Chapters. 1278.
https://gretchen.law.nyu.edu/fac-chapt/1278
