Charting a New Course for Juvenile Justice: Listening to Outsiders
Geraghty, Thomas F., Drizin, Steven A., Journal of Criminal Law and Criminology
We have spent a lot of time in the Cook County Juvenile Court defending young people charged with serious crimes. Like many lawyers who do this work, we have struggled to understand and to comprehend the larger phenomenon of serious crime committed by children in order to understand the dimensions of this work better and to be a better advocate for children. Is there an increase or decrease in serious crime committed by juveniles? Are the children we now see in juvenile and adult court different or the same as the children we saw when we first became lawyers--almost thirty years ago for one of us and nearly fifteen years for the other? Are children at risk of engaging in delinquent behavior different than those who were at risk when we began practicing law? Are our young clients in fact more predisposed to lawbreaking and less likely to be rehabilitated than the children we represented in the past? We have also struggled to understand the dynamics that all too frequently place children at risk of lengthy incarceration. Are the children we see in juvenile court and criminal court now less likely to have a traditional family in place to support them? If that is true, what can be said about the prospects of those children for safe, happy, and productive lives?
These are questions that we lawyers representing children, as well as prosecutors, judges, and legislators should have tried more energetically to answer with the help of those, like the authors whose work is reviewed here, who have the expertise to help us. Our juvenile justice system has suffered as a result. Decision making is too often based upon intuition. Policies are too often dictated by the aberrational case and controlled by the quick fixes that prosecutors and politicians propose in order to get themselves re-elected rather than upon non-political solutions supported by research. As a consequence of political, rather than research-based responses, we increasingly try children as adults, impose harsh prison sentences upon children, and commit ourselves to supporting the lengthy prison sentences that will inevitably produce even more dangerous and incapacitated adults for us to worry about and care for in the future.
The blame for this sad state of affairs rests squarely on the shoulders of all who work in the juvenile justice system--judges, prosecutors, defense lawyers, as well as the legislators who provide the legal framework that guides our work. Each of these groups is motivated by different pressures that prevent them from basing decisions and policies upon the facts. Prosecutors and legislators ignore merit- and research-based solutions because they must get themselves elected. As will be demonstrated below, the facts are complex and the solutions involve a good deal of trial and error. Judges are less blameworthy because their duty is to follow the law that prosecutors and legislators move through the legislative process. However, the failing of judges is their reticence to speak out and propose thoughtful solutions based on what they see on a daily basis--the senseless injustices done to children. While a few judges are sympathetic to the new draconian approaches to juvenile justice, and so do not speak out because they support "get tough" policies, other judges fail to speak out because they believe that by doing so they will inevitably become involved in the political process, violating the Code of Judicial Conduct's prohibition against judges becoming involved in political activity and creating the impression that they lack impartiality. But judges are permitted to speak out on subjects which will advance the cause of justice, and juvenile court judges have, perhaps, the best overview of the problems that our juvenile justice system faces.(1) Their voices must be heard if rational juvenile justice policies are to emerge.
Lawyers for children are at fault because they have failed to lead. Their failure is all the more egregious because they know their clients best and should have organized to tell their stories more effectively. …