Juvenile Prosecutors Are Not Criminal Prosecutors

^©Paul Wake

A slightly different version of this article was published in the January/February 2001
issue of The Prosecutor, the magazine of the National District Attorneys Association.

The Juvenile Justice System Is Not the Criminal Justice System

Getting tough on juvenile delinquents gets a lot of promotion. We often hear calls to reform or even eliminate juvenile justice systems in favor of more aggressively punishing young offenders. Sometimes we prosecutors who work in juvenile court slide toward seeing our role as identical to that of criminal prosecutors, and we limit our selection of prosecutorial tools to various sizes of hammers with which to pound young offenders. It may make more sense to remember that juvenile prosecutors work in a separate justice system, and should usually spend more time getting concerned than getting tough. That concern should center on finding ways to do what juvenile justice systems were designed to do: fix kids. A recent Michigan case illustrates why adult approaches do not neatly apply to children.

A Brief Case Study

Kayla was shot dead outside her first grade classroom in March of 1999. The boy who killed her was caught immediately but was not been imprisoned, much less executed.

If, as some have suggested, juvenile courts need to get tough on children and focus on imposing punishment and creating fear, then Kayla’s killer has been coddled too kindly. If, as some have suggested, juvenile offenders are responsible for their choices and so should be treated like adults, then Kayla’s killer got away with murder.

Those are pretty big “ifs,” though.

It is now common knowledge that Kayla’s killer was only six years old. Moreover, he was raised with minimal supervision, lived in a hovel, was surrounded by drugs and alcohol and guns, and did not have a father at home. Why aren’t people demanding vengeance against this child? Because most people realize there is a difference between children and adults, and it is foolish to expect children to be as accountable as adults. Even the most rabid of the “get tough on crime” crowd aren’t calling for that six year old’s blood. He is no where near being as responsible for that horrible killing as would be, say, his father if his father had pulled the trigger. Local officials need to find a way to fix the boy so that he grows up to be a decent human being. That way does not include treating him as an adult.

The Juvenile Justice System is Not the Criminal Justice System

This leads to what should be an obvious point: there is a good reason for the existence of juvenile justice systems. We have separate systems because children are children, not adults. We do not let children contract, vote, or drink. We recognize that children have more of a custody interest than a liberty interest, because they are not mature enough to competently make their own way in the world. Children are still learning simple concepts such as that there is good and evil and they’d better choose the right, that adolescent bravado is annoying and frequently leads to bouts of stupidity, and even that death is permanent.

Juvenile justice systems were designed with this developmental concept in mind. They do not to treat children as something they are not: fully functioning, fully accountable adults who deserve little more than punishment for criminal acts. They do treat children as something they are: works in progress that we must guide toward becoming decent human beings. Striving not only to protect the community and to recompense victims, but also to develop competency on the part of the child, juvenile courts are reflections of society’s understanding that wayward children should be fixed, not thrown away. If all we are going to do to children is punish them, there would be no point in having a separate juvenile justice system—the criminal justice system would suffice. Since there are separate systems, there is no point in trying to act as if the two systems are the same.

In recent years the reconstruction of many juvenile justice systems seemed based on the notion that a temporary surge in offense rates, especially in violent offenses, required abandoning rehabilitative approaches in favor of getting tough. However, research presented at the Department of Justice’s 1998 national teleconference on juveniles in the criminal justice system suggested that this approach has actually increased recidivism by putting children in a system that turns them into even worse criminals instead of decent adults. This raises a question about whether these get tough changes were rational decisions made with long-term goals in mind, or an inadequately thought through response to a short-term surge in delinquency.

In the debate over the direction of juvenile justice, have juvenile prosecutors simply assumed we are criminal prosecutors who happen to deal with young criminals, or have we had the imagination to view ourselves as something different? Since we are part of a different justice system, perhaps we should focus on furthering the worthy goals of that system, rather than remaking it into the more familiar criminal justice system.

Getting Back to Basics

It is important to remember that most children who come to juvenile court have committed a minor offense and will not keep coming back. We don’t need to throw the book at such offenders; imposing a consequence and requiring restitution should be enough. Traditionally, juvenile court probation officers have diverted many such cases at intake, handling these offenders nonjudicially. This practice continues to make sense.

Beyond that, early intervention is a key to success. The juvenile justice system should nip small problems in the bud before they grow into large problems (and here the federal government requires a wake-up call, because it has stood in the way of taking status offenses seriously). Creative juvenile prosecutors must push legislators to fund appropriate early intervention. Jurisdictions that are still able to devote time to individual misdemeanor offenders should be happy to do so rather than assuming their prosecutors are underworked. Otherwise they may eventually find themselves swamped with so much serious crime that they are constantly playing catch up.

For repeat offenders, a regimen of graduated sanctions is essential. Children identified as problems by their behavior must get a chance for help to fix their drug problems, learn better ways of dealing with anger, and so forth before they are so far gone they can only be incarcerated. Intermediate sanctions combined with adequate help to overcome problems does work in many cases. It will not adequately substitute for loving, supportive families or for a society that stands for values higher than individual licentiousness, but it will fill part of the breach.

Finally, for those dangerous souls who refuse to behave we need to be able to readily incarcerate them. However, juvenile prosecutors should work to insure that these children are not thrown to the wolves, but are instead removed to a youth correctional setting where there is at least a chance that educational and therapeutic programs will keep them from becoming a long-term danger to society.

Early intervention, graduated sanctions, and lowering the boom on the worst offenders are the true basics of juvenile justice. They work, and they produce better results over the long run than the abandonment of children to the criminal justice system.

Another Case Study

I was recently fortunate to meet Jeremy Estrada. He is currently a premed student at Pepperdine, and early in 2000 chaired a national panel looking at the future of juvenile justice. A few years ago, though, he was a gang member on the streets of L.A., watching his best friend bleed to death after being ambushed in a drive-by shooting. If he were still a minor and went to court today on the record he accumulated as a juvenile offender, he would be headed for a lifetime in prison. However, when he went through the juvenile justice system his judge was still able to give him a chance.

Jeremy Estrada was shipped to rural Nevada, where he spent an extended period in a program focused on rehabilitation. That program worked, and did for him what each of us should try to do for the children in our communities: push them toward living decent lives. We need to work for more Estrada outcomes.

Conclusion

We juvenile prosecutors are in an enviable position. As prosecutors we can do our part to protect the community in traditional ways. As juvenile prosecutors we can also do our part to rebuild wayward youths (which also happens to be the best way to protect the community). Developing competency in children, restoring victims, and protecting the community have long been the focus of juvenile justice, and should be every bit as much the focus of the juvenile justice system’s attorneys. Using a carrot, a stick, or whatever other approach will work best in each individual situation, we should maintain this focus on fixing kids.

A wonderful juvenile prosecutor story, which illustrates exactly what juvenile prosecutors should be about, was published in the same issue of The Prosecutor as the article above. Entitled "Taking S.M.A.R.T. Action in Tucson: A County Prosecutor and Community Respond to School Violence," it dealt with that area’s School Multi-Agency Response Team program. The article’s author, juvenile prosecutor Verla O’Donovan, told of an experience in working with the program to get a particular girl some supervision and redirection:

Her criminal history was a long, bad story. We began working with her. The S.M.A.R.T. team recommendation to the court was to place her in foster care. Her crimes and drug use stopped. After a year on probation and close to her 18th birthday, she stopped by the juvenile court for a probation review in which she was to be successfully terminated from probation. She had been moved to a new foster home and still continued to thrive and remain referral free. “This is my public defender,” she said pointing to her lawyer. “And this is Marsha. She used to be my probation officer.” She then spotted me in the lobby and threw her arm around my waist. “And, mom,” she said, “this is my prosecutor.”

For another view on the role of the juvenile prosecutor, look at The Expanding Role of the Prosecutor in Juvenile Justice (http://www.co.dakota.mn.us/Departments/Attorney/Publications/ExpandRoleProsecutorJuvJustice.htm).

People with an interest in Utah juvenile court practice should look at How to Manipulate Juvenile Prosecutors: A Guide for Utah Defense Attorneys (http://user.xmission.com/~wake/utahjuvenilelaw.html). For further research there is a custom Utah Juvenile Justice Search Engine (http://user.xmission.com/~wake/search.html) that only searches from a list of relevant juvenile justice web sites, and so screens out most irrelevant search results.

To contact the author, send e-mail to wake@xmission.com. If you cannot use e-mail software from your location, use this form.