A. Dispositions in the Juvenile Justice System
1. Early Juvenile Justice Systems and the Parens Patriae Doctrine
Juvenile courts originated in the late nineteenth century when reformers began pushing for separate systems focused on the unique needs of youth. The first juvenile court in the United States was founded in Cook County, Illinois, in 1899, and by 1925, all but two states had established separate juvenile justice systems. These courts were created based on the concept of parens patriae, which suggests that states have an obligation to intervene in the lives of children who have not received adequate care or supervision.
Under the parens patriae approach, the offenses that young people committed were viewed as symptoms of juveniles' real needs, rather than criminal actions for which they were directly blameworthy. Proponents noted that children are dependent on adults in many facets of their lives: they are developing emotionally and cognitively, they are highly impressionable, and they have different understandings of the consequences of their actions. These attributes all contributed to a sense that children were less culpable for their offenses than *1263 adults. Instead of focusing on punishment, juvenile courts were intended to promote the best interests of court-involved children by providing a rehabilitative alternative to the criminal justice system.
Judges in juvenile justice systems had broad discretion in determining what dispositions to impose. This was based on the idea that the judge needed to craft a disposition that would serve the interests of the "whole child," not simply incapacitate the offender or punish the symptom of criminal activity. Under this discretionary system, the juvenile-court judge was expected to evaluate a juvenile offender's resources and needs. The judge could then impose treatments intended to remedy the underlying causes of the juvenile's delinquency and address various aspects of the young person's well-being.
Traditional juvenile courts also rejected many of the criminal justice system's procedural safeguards. "Judges conducted confidential and private hearings, limited public access to court proceedings and court records, employed a euphemistic vocabulary to minimize stigma, and adjudicated youths to be delinquent rather than convicted them of crimes." Juvenile-court judges often imposed indeterminate and nonproportional dispositions to allow flexibility in juveniles' treatment and supervision.
2. Due Process Under In re Gault and In re Winship
Beginning in the 1960s and 1970s, however, juvenile courts became increasingly formal in response to two important decisions by the U.S. Supreme Court, In re Gault and In re Winship. In Gault, the Court held that juveniles accused of delinquency must be afforded the same due process rights as adults. A fifteen-year-old boy who made lewd remarks to a neighbor was "taken from the custody of his parents and committed to a state institution pursuant to proceedings in which the Juvenile Court ha [d] virtually unlimited discretion." Although the statutory penalty for adults was a $5 to $50 fine or two months imprisonment, the young man was sentenced to six years in a *1264 juvenile facility. The Supreme Court held that the informal process that resulted in this lengthy sentence violated the Fourteenth Amendment. Writing for the majority, Justice Fortas explained, "The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment .... Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness." Accordingly, the juvenile was entitled to notice of the charges against him, counsel, confrontation and cross-examination of witnesses, and privilege against selfincrimination.
A few years later, the Supreme Court applied the standard of proof used in criminal proceedings to the juvenile context. In Winship, a twelve-year-old boy was charged with breaking into a locker and stealing $112 from a woman's pocketbook. Despite acknowledging that "the proof might not establish guilt beyond a reasonable doubt," the judge sentenced the boy to eighteen months in a training school. The Supreme Court reversed, noting that "[t]he same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child." Accordingly, the juvenile court could only impose a sentence if it concluded "beyond a reasonable doubt" that the boy had committed the offenses.
In addition, the Winship Court explained that "the observance of the standard of proof beyond a reasonable doubt ‘will not compel the States to abandon or displace any of the substantive benefits of the juvenile process."' However, despite the Court's insistence that the decisions would not change the juvenile court's therapeutic mission, these changes to the operation of juvenile justice procedure made juvenile courts more like adult criminal justice systems. The doctrine of parens patriae was no longer the overriding approach. Instead, judicial discretion was circumscribed by the requirements of due process. Professor Barry Feld has stated that Gault and Winship "shifted the focus of juvenile courts from paternalistic assessments of a youth's ‘real needs' to proof of commission of a crime." He argues that this transition to a more formal approach has caused juvenile courts to increase their focus on punitive justice at the expense of the rehabilitative norm.
*1265 3. Increased Statutory Focus on Punishment
In response to incidents of violence in schools in the 1980s and 1990s, state lawmakers also began to move toward policies for juvenile justice that focused more on punishment, deterrence, and incapacitation. At the same time, many juvenile justice laws maintained elements of earlier approaches based on the best interests of the child. For example, the purposes of Texas's Juvenile Justice Code include "balanc[ing] public protection and rehabilitation while holding juvenile offenders accountable," "permit[ting] flexibility in the decisions," and "consider[ing] the juvenile offender's circumstances." The statute incorporates both the traditional goal of rehabilitation and the more recent goals of protecting the public and holding juveniles accountable.
4. The Creation of Juvenile Disposition Guidelines
Responding to continuing concerns about undue judicial discretion, many states also began enacting guideline systems for juvenile delinquency dispositions. These guidelines were intended to make juvenile dispositions more consistent and uniform across cases and among different judges. In some states, the guidelines are voluntary, other states provide incentives for using the guidelines, and still others require judges to adhere to the guidelines. Guideline systems are primarily based on the type of offense committed, thus injecting elements of proportionality and punitive justice into juvenile systems.
For example, Texas's Juvenile Justice Code contains seven tiers of sanctioning. For committing "an act that violates a school district's previously communicated written standards of student conduct," a student will be assigned to sanction level two, which permits a judge to require the student to participate in a community-based intervention program or other social services. However, based on prior delinquent conduct and other factors, a judge may assign the student to a higher level with sanctions that are more severe. Similarly, guidelines in the state of Washington direct judges to first calculate an initial number of points based on the seriousness of the offense (and according to a ten-level grid). The judge then modifies the point total based on the *1266 offender's age and criminal history.
Despite guideline systems' attempts to make dispositions more consistent, however, the practices of individual judges remain profoundly divergent, even within states. One study of juvenile courts in Minnesota found that urban courts generally engaged in more formal, rule-oriented decision making, whereas suburban and rural courts typically decided cases informally, giving more emphasis to the best interests of children. As a result, urban courts tended to sentence similarly charged offenders more severely than suburban and rural courts.
Enduring differences in disposition practices largely stem from guideline systems themselves, which continue to give substantial discretion to judges. For each level in the Texas guidelines, for example, the statute presents a list of potential sanctions that judges "may" impose. The permissive use of "may" gives judges discretion to determine which of the presented options to impose and whether to impose sanctions at all. Discussing the purposes of the guidelines, the Texas Code also states that "departure of a disposition from this model is not necessarily undesirable and in some cases is highly desirable." Thus, the guideline systems maintain elements of parens patriae while simultaneously channeling judicial discretion toward proportionality and punitive justice.
5. Approaches to Status Offenses
Further adding to geographic inconsistencies, state laws are widely divergent in their treatment of status offenses. Some states require status offenders to receive "intervention and diversion services intended to increase family functioning and avoid court involvement," whereas other states do not provide interventions *1267 at all prior to formal adjudication. Some states treat status-offense cases as dependency cases, and others classify them as delinquency cases. Because of differing state approaches to status offenses, dispositional outcomes vary among states and juvenile courts. In addition, remnants of parens patriae approaches to juvenile justice allow judges to exercise considerable discretion in disposing of these cases, resulting in widely variable outcomes for juvenile offenders.
In spite of these differences, many juvenile justice systems appear to be approaching status offenses with increasing formality. Between 1985 and 2004, the number of formally petitioned status-offense cases more than doubled, with the largest increases occurring in truancy and curfew cases. The likelihood that a petitioned status-offense case would be adjudicated rose from 50% in 1995 to 63% in 2004. Accordingly, it is becoming increasingly likely that a student who is referred to court for truancy or another status offense in school will have her case formally prosecuted.
Federal law has also played a role in the disposition of status offenses. In 1974, Congress enacted the Juvenile Justice and Delinquency Prevention Act (JJDPA), which provides financial incentives for states to prohibit juvenile courts from placing status offenders in secure facilities. This prevented many status offenders from being sent to out-of-home placements for truancy and other misbehavior. However, the JJDPA was amended in 1980 to permit the detention of status offenders who violated valid court orders, including orders imposing probation. Though many states continue to "restrict the use of harsher penalties if a status offender violates probation," others "have exercised this detention authority more aggressively." Moreover, some states have simply chosen to forgo portions of the JJDPA funding in order to place status offenders in secure institutions. As a result, "juveniles were securely detained in 7% of petitioned status offense cases" in 2004, with truancy cases making up the largest share of adjudicated status offenses that resulted in out-of-home placement.
