Throughout history, the premises upon which the juvenile justice system are based swing like a pendulum, from one extreme to the next, never stopping in the middle. To understand why the pendulum never stops in the middle, we must begin by examining the juvenile justice system in its historical context.

Two disparate philosophical themes emerge out of a developmental review of the juvenile courts' history in the United States. One theme is of a court of law for children with legal and procedural safeguards; the other is that of the juvenile court as a social welfare agency with psycho-social remedies, attempting to reform wayward youth. "Should we punish?" or "Should we treat?" are questions that define the ambivalence and characterize the difficulties the court has had in discharging its diverse role. Roscoe Pound put it succinctly when he said, "The juvenile court is the illegitimate issue of an illicit relationship between the legal profession and the social work profession, and now no one wants to claim the little bastard."2

Prior to the juvenile justice movement, children were treated as chattels of adults without any rights, and if found guilty of a crime they were sentenced as any adult would be.3 Early reform groups did not accept the common notion that such harsh treatment would result in the rehabilitation of delinquents.4 In fact, many believed the conditions of the adult prisons led juries and judges to acquit the young, rather than send them to such inhuman places.5

The New York City House of Refuge, which opened in 1825, was the first of these youth prisons.6 In a few years, other houses of refuge were established that accepted children convicted of crimes, as well as destitute youth.7 These facilities were advanced as preventive institutions designed to accept children of unfit parents. The Pennsylvania Supreme Court in Ex parte Crouse8 stated:

The object of charity is reformation by training of inmates: by imbuing their minds with principles of morality and religion; by furnishing them with a means to earn a living, and above all, by separating them from the corrupting influences of improper associates. To this end, may not the natural parents when unequal to the task of education, or unworthy of it, be superseded by the parens patriæ or common community?9

This case appears to be the first application in American law of the legal doctrine of parens patriæ, the state acting on behalf of the juvenile, which began the development of the virtually unrestrained powers of later juvenile courts.10

Illinois adopted the first juvenile code in 1899,11 which established the country's first juvenile court and radically altered the way courts dealt with children.12 This early juvenile court imposed the then-overriding objective of rehabilitation to resolve cases. The Illinois law focused on the offender's character, rather than the nature of the offense, which was a reflection of and response to the developing "Child Savers" movement.13

Because the state's emphasis was on rehabilitation, and not punishment, there was no need for the formal protection of due process.14 Further developments based on this philosophy included informal, closed proceedings, which resulted in sealed records to avoid stigmatization.15 As a result, dispositions evolved based on the medical model of diagnosing social ills.16

During the 1920s, as the child guidance movement developed expertise, professional and mental health services available through the courts were expanded.17 Social workers and probation officers were now trained to divert delinquents away from institutions deemed too restrictive. The courts were given jurisdiction over children who committed adult crimes or who exhibited non-criminal or status offense behavior.18 These status offenders included truants, runaway youth, children beyond their parents' control, and those deemed incorrigible.19 Moreover, courtroom proceedings had little to do with law, and the lawyers' role was not prominent.20

A new era of juvenile justice began in the 1950s, due in part to the greater mobility of juveniles, the growing problems of drug use, and the marked increase in violent youth gangs.21 Many segments of society became vulnerable, and critics of the juvenile justice system became more vocal and organized. Their potent attacks ranged from accusations of excessive judicial leniency with violent offenders22 to excessive harshness in depriving female status offenders of liberties.23 Other criticisms related to the stigmatization of youths, discriminatory sentencing practices, and child abuse occurring in juvenile correction facilities.24 The major thrust for change came with the belief that the treatment model deterring delinquency had failed, and the juvenile court had not fulfilled its promise.25 The decline in the era of rehabilitation had begun.

The pendulum began its swing and never stopped at the bottom. The United States Supreme Court's decision in Kent v. United States took note of the juvenile justice system's shortcomings.26 In Kent, Justice Fortas wrote, "There may be grounds for concern that the child receives the worst of both worlds; that he gets neither the protection accorded to adults, nor the solicitous care and regenerative treatment postulated for children."27 A few years later, In re Gault28 established an innovative reform by holding that juveniles were entitled to the same procedural due process protections accorded adults, to wit, the right to counsel;29 the right to notice of specific charges;30 the right to confront and cross examine witnesses; the
right to remain silent; and the right to subpoena witnesses in defense.31

Not long thereafter, an activist Supreme Court promulgated additional procedural protections in In re Winship.32 In re Winship provided that guilt must be proven "beyond a reasonable doubt" in juvenile proceedings.33 Following these constitutional expansions, juvenile courts were bound by defined legal standards, as well as an existing social welfare philosophy which are not always mutually inclusive obligations. The debate continued.

In the 1960s, when we hung out our dirty wash as a nation and social activism and permissiveness were on the rise, the country saw activism among legislative bodies. By July 1974, Congress enacted the Juvenile Justice and Delinquency Prevention Act,34 which allocated funds for programs that emphasized community-based treatment and prevention. It established the office of Juvenile Justice and Delinquency Prevention to oversee these programs.35 This influential legislation, which called for decriminalization, deinstitutionalization, and the elimination of court authority over status offenders, created a furor.36 There were those who believed that the courts' authority was essential in dealing with status offenders, but this new approach was hailed by the civil libertarians, who advocated the separation of criminal and non-criminal youth in juvenile court.37 The debate also continued over deinstitutionalization and closing down juvenile correctional facilities, which some advocated replacing with smaller, more open local facilities.

Federal incentives were inadequate to induce the states to implement these legislative reforms. However, many states nonetheless enacted enabling legislation to receive what little federal monies were available. What this legislation really said was, "Parents, you owe to your children the duty to care for, protect, house, feed, and educate." Then we said to the child, "You don't have to obey your parents, you don't have to go to school, you don't have to stay at home, and there is no one that can make you do any of these things." When the court lost its authority over status offenders, buttressed by the freedom cry of the sixties, we saw an explosion of runaways in the seventies and eighties.

A zealous preoccupation by the administrators of the Office of Juvenile Justice was forcing states and communities to accept and implement untested, unproven, and costly theories, which created havoc in the administration of juvenile justice throughout the seventies. Recent research suggests these policies were disruptive, counter-productive, and to a large extent unnecessary.38 It appears that the modus operandi of the Office of Juvenile Justice was the following:

We have a theory. We believe it is correct. You states and cities must accept it, or you will not get any federal money. If you accept it, we Feds will pay for a small part of the cost of your programs. We will also pay for research that demonstrates that we were right. Now we are told by researchers that we were wrong, or they still don't know if we were right. But, you still have to do it our way if you want the money.

As more and more children were leaving home or running away, the cry went out that a million children a year were being kidnapped. Pictures of youth appeared on milk cartons throughout the country, and it did not take long for this idea of kidnapping to be shot down. Research indicated that less than one-half of one percent were being kidnapped, and that the balance were running away from either an abusive home, or seeking "freedom." Runaway youth migrated to our major metropolitan cities, where they were sexually abused, ended up in prostitution, or became involved in pornography.

During the 1980 reauthorization of the Juvenile Justice Act, the National Council of Juvenile and Family Court Judges, together with the Ohio Association of Juvenile Court Judges, sponsored the "Valid Court Order" amendment, which was carried by Representative John Ashbrook of Ohio.39 For those states who had not abandoned the status offender, this gave the status offender one bite out of the apple before being treated in some cases as a delinquent.40 In addition, the National Advisory Committee, reviewing the work of the Office of Juvenile Justice asserted that the office had no theory of delinquency causation.41 Further, Congress recommended that the office should become more involved with the serious offender problem and that the office should stop contributing to the demise of the family.42 The pendulum started swinging the other way.

In 1984, the National Advisory Committee for Juvenile Justice and Delinquency Prevention sharply criticized the previous policy initiative of deinstitutionalization and diversion. The Committee argued for a new federal focus on serious juvenile offenders, with emphasis on deterrence, fixed sentencing, and incarceration of youth. State legislatures responded by passing laws allowing juveniles to be transferred to adult courts.43

In addition to this wave of "get tough" legislation, the United States Supreme Court's majority opinion in Schall v. Martin 44 was a clear indication of a more restrictive attitude toward children's rights. Writing for the Court, Chief Justice Rehnquist recognized that "the juvenile's liberty interest may, in appropriate circumstances, be subordinated to the State's parens patriae interest in preserving and promoting the welfare of the child."45 Consequently, the Court held that preventive detention of juveniles before trial was a legitimate state action to prevent pre-trial crimes.46

No great leap is required to realize the public has a stake in what happens to young people. It expects children to be educated, which means that they should not drop out of school. It expects children to be healthy, not to become alcoholics before they are old enough to drive. It expects children to be controlled until they learn self-control, which means that they should not run the streets at night. It expects children to adhere to a moral code, at least to the extent of not producing their own children while still going through adolescence themselves. No segment of the public, other than a few professors and
other fuzzy-headed social theorists have been heard to say that compulsory education laws should be repealed, as they would effectively be if truancy jurisdiction were eliminated; or that children should not obey their parents as they could if incorrigibility jurisdiction were eliminated; or that children should be allowed to smoke and drink to their hearts' content, as they might if possession and consumption of cigarettes and alcohol were no longer unlawful for children.

In 1984, the Metropolitan Court's Committee of the National Council of Juvenile and Family Court Judges published thirty-eight recommendations relative to the serious offenders. It is interesting to note that this Committee was composed of the presiding judges of thirty of the largest metropolitan areas in our country, wherein more than one-half of the serious juvenile violent crimes were being committed. This author suggests that if these recommendations had been implemented by legislation, we would not be facing the problems that we are today. Moreover, this point is particularly significant when one realizes the seeds of this problem were sown in the permissive sixties and carried through into the seventies and eighties.

As we move toward the end of the century, the pendulum is still moving and laws are being passed, I submit, that will produce unintended results. Toward this end, we must ask ourselves, "Are we so enamored with the successes of the adult prison system that we now send youth directly to an adult prison based on the offense, rather than individualized justice?" Such is the impact of legislation recently passed by the Ohio General Assembly, to wit, Amended Substitute House Bill 1,47 wherein juveniles may be transferred directly to the adult criminal court for prosecution based upon certain charged offenses.48

This legislation establishes offense categories. Category One Offenses are: aggravated murder; attempted aggravated murder; murder; and, attempted murder.49 Category Two Offenses are: kidnapping; rape; voluntary manslaughter; involuntary manslaughter (F1); felonious sexual penetration; aggravated arson; aggravated robbery; and aggravated burglary.50 A youth would be automatically bound over if one of the following applies: 1) the youth is fourteen years or older, has committed a felony offense, and has previously pleaded guilty or was convicted of a felony level offense in an adult court; or 2) the youth is fourteen years or older, has committed a felony offense, and is a resident of another state where he or she would be considered an adult; or 3) the youth is sixteen or seventeen years old and has been charged with a Category One Offense, or the youth is fourteen or fifteen years old, has committed a Category One Offense and has previously been committed to the Ohio Department of Youth Services for a Category One or Category Two Offense; or 4) the youth is sixteen or seventeen years old, has committed a Category One or Two Offense (except kidnapping) and has previously been committed to the Ohio Department of Youth Services for a Category One or Two Offense; or 5) the youth is sixteen or seventeen years old, has committed a Category Two Offense (except kidnapping), and displayed, brandished, indicated possession, or used a firearm during the commission of the act.51 Should any of the above be found by way of probable cause, the court will transfer the juvenile without an amenability hearing.52

This legislation allows the juvenile court to transfer a youth fourteen years old or older who has committed a felony offense to the adult court.53 As part of this process, the court must consider certain conditions in favor of transfer.54 In addition, minimum sentences are provided for youth who commit certain acts.55 For example, youths who have committed a Category Two Offense (except aggravated burglary) must serve a minimum of one to three years.56

The same day the Ohio General Assembly passed House Bill 1, it also passed Senate Bill 2, which is an adult sentencing bill that is six hundred seventy-eight pages long.57 This bill becomes effective July 1, 1996, and effectively repeals the transfer section, the definitional section, and the dispositional sections of House Bill 1.58 Moreover, Juvenile Rule 30, entitled "Relinquishment of Jurisdiction for Purposes of Criminal Prosecution"59 has not been modified, vacated, or repealed, so it remains uncertain whether juvenile courts can proceed according to the rule instead of the new statutory provisions.60

House Bill 1 and similar legislation are based on the perception that juveniles are responsible for most of the violent crime being committed in this country. The National Center for Juvenile Justice, under a grant from the Office of Juvenile Justice, published Juvenile Offenders and Victims: A National Report, detailing juvenile crime statistics.61 In this report, there are two important sets of statistics. Using the National Crime Victimization Survey, it was found that juveniles committed nineteen percent of the crimes of violence.62 Persons most likely to be victimized by juveniles were individuals between ages twelve and nineteen.63 In contradistinction, juveniles were seldom the offender in crimes against older victims.64 For example, seven percent of robberies of "persons ages twenty to thirty-four were committed by juveniles, and victims above age fifty rarely reported they were robbed by juveniles."65

The second source of information addressing the relative volume of crime committed by juveniles and adults comes from the Federal Bureau of Investigation. In 1991, The FBI reported only "eleven percent of all violent crimes, i.e., murder, forcible rape, robbery, and aggravated assault, were cleared by the arrest of a person under age eighteen."66 Juveniles were also arrested in only twenty-two percent of all cleared property crime, i.e., burglary, larceny, motor vehicle theft, and arson.67

This report also found that although juveniles were responsible for a disproportionate share of the increase in violent crime, it was not accurate to say that juveniles were driving the violent crime train. In fact, adults were responsible for
seventy percent of the recent increase in violent crime.68 Therefore, juveniles were responsible for thirty percent of the violent crime increase between those same years.

Is it possible to project the increase in juvenile violent crime for the next ten to fifteen years? Estimates vary widely, but it is reasonable to assume that it will increase, and possibly increase dramatically. However, in this quest for statistical certainty, we must not lose sight of the method by which we collect our samples. For example, a juvenile judge presiding in a small county who committed four juveniles in 1994 and eight in 1995 increased his commitment rate one hundred percent. Conversely, a juvenile judge in a larger county who commits fifty in 1994 and seventy-five in 1995 increased his commitment rate by only fifty percent.

The national media has, as is their fashion, taken the percentages of increase and the projections of increase, and headlined them. Politicians, as is their fashion, have reacted by passing laws that are punitive and punishment oriented, replacing the individualized justice that has been the heart of the juvenile system in the past. Thus, Ohio adopted House Bill 1, referred to earlier, which retains judicial discretion but also adds statutory exclusion depending upon the juvenile's age and offense. Will it reduce violent juvenile crime? Only time will tell. However, the experience in other states indicates that mandatory transfer does not impact violent crime. For example, New York and Florida have had statutory exclusion for many years, and reports indicate that their juvenile crime increase exceeded the national average.69 Moreover, in 1992 New York, Florida, New Jersey, Maryland, and California, respectively, had the highest juvenile violent crime arrest rates.70

It is a sad commentary that many youths will end up in adult jails with little or no hope of a rehabilitative effort. The juvenile justice system has been the step-child of the criminal justice system since its inception. A common sense approach to crime indicates the best opportunity to prevent crime is to deter it.71 In the past, juvenile judges and juvenile justice professionals have been given the impossible task of habilitating or rehabilitating juvenile offenders without the wherewithal to do so.

A few years ago, I appeared before a Senate Committee testifying on behalf of the reauthorization of the Juvenile Justice Act. The chairman of that committee remarked publicly that children do not vote and children do not have PACS, and therefore their voice is not too loud in the halls of Congress. Is it too late to hope the anti-system advocates, with their untested theories, the members of the Ohio General Assembly, juvenile judges, and juvenile justice professionals can sit down and determine the best approach to the problem? There is no need for studies because the juvenile courts have been studied to death. What is needed is a cooperative effort and money. It has been said that our children constitute twenty-five percent of our population and one hundred percent of our future. There is no quick fix and no sure answer, but I submit that House Bill 1 is not the total answer.