Amer. J . Orthopsychiat. 48(3), July 1978
OPINION
leaving the Family Out of Family Court: Criminalizing the Juvenile Justice System Phyllis R.
Snyder,
M.S., and Lawrence H. Martin, M.A.S.A.
BerLhira Farm Center and Services for Youth, Canaan, N.Y.
uvenile court, which has become family court in many jurisdictions, was created as a civil court for young people accused of delinquent or wayward acts. Instead of the emphasis being placed on the delinquent or wayward behavior, however, it was placed on rehabilitation. The judge, acting as “wise parent,” looked for ways and means, within the family and within the community, of setting their young charges on the path toward socially useful lives. Juvenile court had few of the trappings of criminal court; neither its procedures nor its atmosphere heralded the adversary proceedings of today. Its courtroom was often a place for mediating parent-child disputes and for searching for solutions to family-related problems. Disillusionment with the effectiveness of family (juvenile) court has led to widespread efforts to transform this court into a junior version of criminal court and to remove status offenders from its jurisdiction. Critics of the system believe that juvenile court has not delivered on its promise to rehabilitate youngsters. The trade-off of some constitutional rights for rehabilitative services has been called into question. Justice would be better served, the critics say, if juvenile proceedings were conducted with all the requirements and
J
safeguards of criminal trials, thus making sure that youth are not deprived of their liberty without due process and proven guilt. After the decision of the U.S.Supreme Court in re Gault (387 US 1, 1967), a series of “legal battles” began in which due process requirements were “expanded far beyond what had been thought to be . . . la juvenile’s] constitutional rights” (p. 1 3 . 4 The legal battles led to the development of case law,5 to juvenile code revision (Colorado Children’s Code, amendments to the California juvenile code, and New Jersey legislation, all in 1967, were among the first responses to Gault), and of course to the development of standards relating to juvenile delinquency and its sanctions. As an outgrowth of the American Bar OPINION pieces are invited by the Editor, and each represents the viewpoint of its author on a significant issue. Members of the Journal’s Editorial Board and of the Board of Directors of the American Orthopsychiatric Association, as well as Fellows of the Association, are encouraged to contribute. Responses to these opinions are welcomed, and will be considered for publication as Letters to the Editor.
Adapted from a presentation at the 1977 annual meeting of the American Orthopgchiatric Association. in New York.
390
AMERICAN JOURNAL OF ORTHOPSYCHIATRY Association’s Project on Standards for Criminal Justice, the Institute of Judicial Administration, a private research and educational organization affiliated with the New York University School of Law, began planning the Juvenile Justice Standards Project. The standards that constitute the major recommendations of the Project classify juvenile offenses into five classes (three of felonies, two of misdemeanors), sgggest imposition of required sentences, and remove jurisdiction of this court over children defined as habitual truants, incorrigible, ungovernable, or beyond the control of their parents or lawful guardians6 Translating these standards into legislation would, in effect, transform family court into a criminal court. Such a transformation is likely to be counterproductive and more of a disservice to youth, family, and community than was the original rehabilitative model, with all its shortcomings. Similarly, removing status offenders from the jurisdiction of family court leaves us without adequate ways of dealing with their problems. More than half of all petitions concerning status offenders are brought by parents. In effect, they are acknowledging that their supervision of their children is no longer effective. They are asking the court to intervene on their behalf (and in the interest of society), out of concern for the youth and in an attempt to arrest self-destructive behavior. We believe the court would be abdicating its responsibility if it were to refuse to hear such petitions. Truancy, running away, or habitual disobedience are almost always symptoms of acute distress. Until society can provide other means of help, access to the court for assistance should be available to parents. The criminalizing of family court does not just limit jurisdiction to those who have committed delinquent acts, it stipulates specific punishments for specific delinquencies. The discretion of family court judges would be limited, particularly in the disposition of the more serious juvenile offenders. Advocates of this sort of uniform dispositional process almost always use the word “sentence” rather than “placement,” and usually talk about “incarceration” rather than “residential treatment.” They be-
39 I
lieve in punishment rather than rehabilitation. The offender is not very important in this scheme of justice; the offense is preeminent. The family’s ability or willingness to care €or the offender at the time of disposition or at a later date is ignored. The “sentence” is determined primarily by the seriousness of the act. Remorse is not a factor; restitution is not a factor; response to treatment is not a factor. What is left is the “return to criminal procedure based on a punitive philosophy, the mechanical . . . application of penalties.” * Not only is the family left out of such a scheme, the youth himself is irrelevant. Many lawyers have applauded the enhanced stature of family court that has come about as a result of the formalizing procedures. Family court now provides procedural safeguards and it is assumed that the dignity of the courtroom has been improved. If so, it has been at high cost. The combination of decorum and legal formality, coupled with adversary presentations, has made many a courtroom an intimidating place-a place where lawyers are comfortable and families are not. Instead of a place where parents and children can be heard and understood, and where wounds can begin to heal, it is now a place where the family is stage-managed to step through certain squares in the dance of the adversaries. he milieu of juvenile justice is as important as the disposition. It is adversely affected by heavy calendars, higher probation caseloads, increased paperwork. When family court is mandated to perform additional tasks without the appropriation of sufficient funds to support the additional workload, family court becomes overburdened, its personnel harassed. How can an overburdened and harassed staff individualize a response to every child and parent? How, indeed, can they resist the temptation to proceed whether or not the parent appears with the juvenile? How can they find time to listen to those parents who do appear? Even when families show signs of crisis, will there not be a temptation to dismiss the case on even the slightest grounds or flimsiest motion?
OPINION
392 Given their opportunity to be heard, parents must also be listened to. They must not be demeaned or ignored, nor should their responsibility for the youth before the court be discounted. A lawyer often looks upon the petitioning parent, visibly angry at his child, as the child’s enemy, and sees himself, the adovcate, as the youth’s only friend. Yet when seeking to avoid detention or removal from the community, the same lawyer plays upon parental guilt, and openly coerces parents into taking a recalcitrant youth home. A leading advocate has written a manual for lawyers who practice in family court; this is how he instructs his colleagues to “handle” parents who do not want their child released in their custody pending the next hearing: Uncooperative or unwilling parents should be informed of the consequences c?f their refusal to accept the child home pending the trial. If they still do not cooperate, the possibility of neglect charges can be suggested . . . Once the parents’ cooperation has been gained, their appearance, credibility and earnestness as witnesses must be attended to. (p. 235) Not only are such parents manipulated callously, they are looked upon with contempt by some advocates for youth. In adversary proceedings, the judge must refrain from being the “wise parent” in favor of fulfilling his purely judicial responsibilities. He must determine what counsel for the youth or complainant may present, how the questions shall be put, what rights must be protected in the process of developing an understanding of the case. So we have choreographed the responses of the real parent and given a complicated referee’s job to the “wise parent,” thus effectively restricting a creative contribution from either. Adversary proceedings restrict full disclosure of data, which may be psychologically relevant even when they are not legally relevant. A predetermination of what is admissible narrows the dimensions of knowledge which, in effect, constricts the possibility of understanding. Though determinations of fact (i.e., whether an event occurred) may be discovered by the adversarial method, “the process was clearly not designed for accurate predic-
tions of future behavior or appropriate selection of ameliorative treatment.” 2 Complex human realities require a different format. The formidable trappings of the courtroom, the intimidating process of cross-examination, even the presence of professional intermediaries thwart the discovery of human problems. “Truth” in family court is not merely a finding of fact, a determination that an act occurred and was committed by the person named, which justifies the intervention of the court into the lives of a juvenile and his family. We have long since accepted the basis for legal representation at the fact-finding stage of family court proceedings, but we continue to quarrel with the role of the lawyer and the adversary process at the dispositional stage.9 Adversary proceedings are contests. In a contest, the emphasis is on winning. A hearing that involves a youth and his problems, his relationship with his parents, and an estimate of his ability to use services at the disposal of the court should not be a question of “winning” at all. To avoid becoming mere objects maneuvered by skillful adversaries, the youth and his parents must be able to express what they think and what they feel. They must have confidence that all parties in the courtroom are looking for solutions that hold the promise of changed behavior and change in the circumstances that provoked the petition. The predetermined stance of the adversaries in family court creates special problems. To be committed to the “least restrictive alternative” leads rhe lawyer to impose this formula on all situations, and transforms an idea into a hierarchy of options. A succession of options does not necessarily meet the needs of the individual child. If the youth needs a structured setting earlier than the formula provides, he may have to encounter a series of failures; these, in turn, may dim the prognosis for a rehabilitative experience by encouraging his identity as a “loser.”
In
the adolescent conflict, it is psychologically important that there be adult models to respond to and rebel against; the adolescent defines himself in relation to parents and comes to young adulthood
AMERICAN JOURNAL OF ORTHOPSYCHIATRY after having struggled with the dependenceindependence issue. Overwhelmed parents need strengthening to meet the needs of their children. Parents who have exhausted their ability to direct the activities of their children and keep them out of trouble are most unlikely to succeed in motivating their teenagers to get help voluntarily. To control the behavior of their acting-out offspring is frequently the stimulus for parents seeking the authority of family court. Supporting these parents requires the backing of society in the form of providing the authority the parent is unable to exert, thereby affirming the legitimacy of parental demands. If the court were to require that the wayward youth and the frustrated parents all receive services, the stigma would be diffused and the problem would be properly identified as a family problem. Although it would be helpful to move away from identifying the delinquent act - e v e n the delinquent youth or status offender-as the sole problem, this has not been the direction of recent legislation or case law. Nevertheless, the Report of the Task Force on Juvenile Justice and Delinquency Prevention of the National Advisory Committee on Criminal Justice Standards and Goals proposes as a standard (14:23) a new kind of proceeding: Families with Service Needs.’ A similar proposal was made in New York State by the Honorable George Follett (St. Lawrence County) who advocated a FINS adjudication: Family in Need of service^.^ Yet the direction family court is taking is away from families and away from services. The current emphasis is on procedlira1 safeguards and on determinations based on strict rules of evidence. To be sure, the clamor for change is heard, but it calls for the reduction of judicial discretion, less individualization, and less inquiry into underlying problems.
393
If we treat delinqaent youth as junior criminals, we enhance the possibility that they will assume this identity and become adult criminals. “Family” court, in becoming more legalistic, is becoming the entryway into the criminal justice system. If we have criminalized the family court, we have no tools to divert youth from the rigid, impersonal judicial system. Without services to families mandated by family court, what sort of parents will these troubled youth become? REFERENCES
1974. Juvenile Justice Advocacy: Practice in a Unique Court. Practicing Law Institute, New York. 2. EDELSTEIN, c. 1977. Letter to the editor. Crime and Delinquency 23(2) :217. ~ . F O L L E T T , J. 1975. Testimony before the Temporary State Commission on Child Welfare, Albany, N.Y., Feb. 6; extemporary remarks after prepared testimony. 4. GEORGE, B . 1968. Gault and the Juvmile Court Revolution. University of Michigan Press, Ann Arbor. 5. In re Winship, 397 U S 358, 1970. 6.INSTITUTE OF JUDICIAL ADMINISTRATION (American Bar Association Juvenile Justice Standards Project). 1977. Standards Relating to Juvenile Delinquency and Its Sanctions. (tentative draft) 7. NATIONAL ADVISORY COMMITTEE O N CRIMINAL JUSTICE STANDARDS AND GOALS. 1976. Juvenile Justice and Delinquency Prevention: Report of the Task Force on Juvenile Justice and Delinquency Prevention. Law Enforcement Assistance Administration, Washington, D.C. 8. POLIER, J. 1973. Introduction. I n The Rights of Children, A. Wilkerson, ed. Temple University Press, Philadelphia. 9.SNYDER, P. AND MANGANO, A. 1968. Effect Of law guardian representation on the treatment of delinquent children. SOC. Wk 13 (3):102-108. 1.
BESHAROV, D.
OPINION
leaving the Family Out of Family Court: Criminalizing the Juvenile Justice System Phyllis R.
Snyder,
M.S., and Lawrence H. Martin, M.A.S.A.
BerLhira Farm Center and Services for Youth, Canaan, N.Y.
uvenile court, which has become family court in many jurisdictions, was created as a civil court for young people accused of delinquent or wayward acts. Instead of the emphasis being placed on the delinquent or wayward behavior, however, it was placed on rehabilitation. The judge, acting as “wise parent,” looked for ways and means, within the family and within the community, of setting their young charges on the path toward socially useful lives. Juvenile court had few of the trappings of criminal court; neither its procedures nor its atmosphere heralded the adversary proceedings of today. Its courtroom was often a place for mediating parent-child disputes and for searching for solutions to family-related problems. Disillusionment with the effectiveness of family (juvenile) court has led to widespread efforts to transform this court into a junior version of criminal court and to remove status offenders from its jurisdiction. Critics of the system believe that juvenile court has not delivered on its promise to rehabilitate youngsters. The trade-off of some constitutional rights for rehabilitative services has been called into question. Justice would be better served, the critics say, if juvenile proceedings were conducted with all the requirements and
J
safeguards of criminal trials, thus making sure that youth are not deprived of their liberty without due process and proven guilt. After the decision of the U.S.Supreme Court in re Gault (387 US 1, 1967), a series of “legal battles” began in which due process requirements were “expanded far beyond what had been thought to be . . . la juvenile’s] constitutional rights” (p. 1 3 . 4 The legal battles led to the development of case law,5 to juvenile code revision (Colorado Children’s Code, amendments to the California juvenile code, and New Jersey legislation, all in 1967, were among the first responses to Gault), and of course to the development of standards relating to juvenile delinquency and its sanctions. As an outgrowth of the American Bar OPINION pieces are invited by the Editor, and each represents the viewpoint of its author on a significant issue. Members of the Journal’s Editorial Board and of the Board of Directors of the American Orthopsychiatric Association, as well as Fellows of the Association, are encouraged to contribute. Responses to these opinions are welcomed, and will be considered for publication as Letters to the Editor.
Adapted from a presentation at the 1977 annual meeting of the American Orthopgchiatric Association. in New York.
390
AMERICAN JOURNAL OF ORTHOPSYCHIATRY Association’s Project on Standards for Criminal Justice, the Institute of Judicial Administration, a private research and educational organization affiliated with the New York University School of Law, began planning the Juvenile Justice Standards Project. The standards that constitute the major recommendations of the Project classify juvenile offenses into five classes (three of felonies, two of misdemeanors), sgggest imposition of required sentences, and remove jurisdiction of this court over children defined as habitual truants, incorrigible, ungovernable, or beyond the control of their parents or lawful guardians6 Translating these standards into legislation would, in effect, transform family court into a criminal court. Such a transformation is likely to be counterproductive and more of a disservice to youth, family, and community than was the original rehabilitative model, with all its shortcomings. Similarly, removing status offenders from the jurisdiction of family court leaves us without adequate ways of dealing with their problems. More than half of all petitions concerning status offenders are brought by parents. In effect, they are acknowledging that their supervision of their children is no longer effective. They are asking the court to intervene on their behalf (and in the interest of society), out of concern for the youth and in an attempt to arrest self-destructive behavior. We believe the court would be abdicating its responsibility if it were to refuse to hear such petitions. Truancy, running away, or habitual disobedience are almost always symptoms of acute distress. Until society can provide other means of help, access to the court for assistance should be available to parents. The criminalizing of family court does not just limit jurisdiction to those who have committed delinquent acts, it stipulates specific punishments for specific delinquencies. The discretion of family court judges would be limited, particularly in the disposition of the more serious juvenile offenders. Advocates of this sort of uniform dispositional process almost always use the word “sentence” rather than “placement,” and usually talk about “incarceration” rather than “residential treatment.” They be-
39 I
lieve in punishment rather than rehabilitation. The offender is not very important in this scheme of justice; the offense is preeminent. The family’s ability or willingness to care €or the offender at the time of disposition or at a later date is ignored. The “sentence” is determined primarily by the seriousness of the act. Remorse is not a factor; restitution is not a factor; response to treatment is not a factor. What is left is the “return to criminal procedure based on a punitive philosophy, the mechanical . . . application of penalties.” * Not only is the family left out of such a scheme, the youth himself is irrelevant. Many lawyers have applauded the enhanced stature of family court that has come about as a result of the formalizing procedures. Family court now provides procedural safeguards and it is assumed that the dignity of the courtroom has been improved. If so, it has been at high cost. The combination of decorum and legal formality, coupled with adversary presentations, has made many a courtroom an intimidating place-a place where lawyers are comfortable and families are not. Instead of a place where parents and children can be heard and understood, and where wounds can begin to heal, it is now a place where the family is stage-managed to step through certain squares in the dance of the adversaries. he milieu of juvenile justice is as important as the disposition. It is adversely affected by heavy calendars, higher probation caseloads, increased paperwork. When family court is mandated to perform additional tasks without the appropriation of sufficient funds to support the additional workload, family court becomes overburdened, its personnel harassed. How can an overburdened and harassed staff individualize a response to every child and parent? How, indeed, can they resist the temptation to proceed whether or not the parent appears with the juvenile? How can they find time to listen to those parents who do appear? Even when families show signs of crisis, will there not be a temptation to dismiss the case on even the slightest grounds or flimsiest motion?
OPINION
392 Given their opportunity to be heard, parents must also be listened to. They must not be demeaned or ignored, nor should their responsibility for the youth before the court be discounted. A lawyer often looks upon the petitioning parent, visibly angry at his child, as the child’s enemy, and sees himself, the adovcate, as the youth’s only friend. Yet when seeking to avoid detention or removal from the community, the same lawyer plays upon parental guilt, and openly coerces parents into taking a recalcitrant youth home. A leading advocate has written a manual for lawyers who practice in family court; this is how he instructs his colleagues to “handle” parents who do not want their child released in their custody pending the next hearing: Uncooperative or unwilling parents should be informed of the consequences c?f their refusal to accept the child home pending the trial. If they still do not cooperate, the possibility of neglect charges can be suggested . . . Once the parents’ cooperation has been gained, their appearance, credibility and earnestness as witnesses must be attended to. (p. 235) Not only are such parents manipulated callously, they are looked upon with contempt by some advocates for youth. In adversary proceedings, the judge must refrain from being the “wise parent” in favor of fulfilling his purely judicial responsibilities. He must determine what counsel for the youth or complainant may present, how the questions shall be put, what rights must be protected in the process of developing an understanding of the case. So we have choreographed the responses of the real parent and given a complicated referee’s job to the “wise parent,” thus effectively restricting a creative contribution from either. Adversary proceedings restrict full disclosure of data, which may be psychologically relevant even when they are not legally relevant. A predetermination of what is admissible narrows the dimensions of knowledge which, in effect, constricts the possibility of understanding. Though determinations of fact (i.e., whether an event occurred) may be discovered by the adversarial method, “the process was clearly not designed for accurate predic-
tions of future behavior or appropriate selection of ameliorative treatment.” 2 Complex human realities require a different format. The formidable trappings of the courtroom, the intimidating process of cross-examination, even the presence of professional intermediaries thwart the discovery of human problems. “Truth” in family court is not merely a finding of fact, a determination that an act occurred and was committed by the person named, which justifies the intervention of the court into the lives of a juvenile and his family. We have long since accepted the basis for legal representation at the fact-finding stage of family court proceedings, but we continue to quarrel with the role of the lawyer and the adversary process at the dispositional stage.9 Adversary proceedings are contests. In a contest, the emphasis is on winning. A hearing that involves a youth and his problems, his relationship with his parents, and an estimate of his ability to use services at the disposal of the court should not be a question of “winning” at all. To avoid becoming mere objects maneuvered by skillful adversaries, the youth and his parents must be able to express what they think and what they feel. They must have confidence that all parties in the courtroom are looking for solutions that hold the promise of changed behavior and change in the circumstances that provoked the petition. The predetermined stance of the adversaries in family court creates special problems. To be committed to the “least restrictive alternative” leads rhe lawyer to impose this formula on all situations, and transforms an idea into a hierarchy of options. A succession of options does not necessarily meet the needs of the individual child. If the youth needs a structured setting earlier than the formula provides, he may have to encounter a series of failures; these, in turn, may dim the prognosis for a rehabilitative experience by encouraging his identity as a “loser.”
In
the adolescent conflict, it is psychologically important that there be adult models to respond to and rebel against; the adolescent defines himself in relation to parents and comes to young adulthood
AMERICAN JOURNAL OF ORTHOPSYCHIATRY after having struggled with the dependenceindependence issue. Overwhelmed parents need strengthening to meet the needs of their children. Parents who have exhausted their ability to direct the activities of their children and keep them out of trouble are most unlikely to succeed in motivating their teenagers to get help voluntarily. To control the behavior of their acting-out offspring is frequently the stimulus for parents seeking the authority of family court. Supporting these parents requires the backing of society in the form of providing the authority the parent is unable to exert, thereby affirming the legitimacy of parental demands. If the court were to require that the wayward youth and the frustrated parents all receive services, the stigma would be diffused and the problem would be properly identified as a family problem. Although it would be helpful to move away from identifying the delinquent act - e v e n the delinquent youth or status offender-as the sole problem, this has not been the direction of recent legislation or case law. Nevertheless, the Report of the Task Force on Juvenile Justice and Delinquency Prevention of the National Advisory Committee on Criminal Justice Standards and Goals proposes as a standard (14:23) a new kind of proceeding: Families with Service Needs.’ A similar proposal was made in New York State by the Honorable George Follett (St. Lawrence County) who advocated a FINS adjudication: Family in Need of service^.^ Yet the direction family court is taking is away from families and away from services. The current emphasis is on procedlira1 safeguards and on determinations based on strict rules of evidence. To be sure, the clamor for change is heard, but it calls for the reduction of judicial discretion, less individualization, and less inquiry into underlying problems.
393
If we treat delinqaent youth as junior criminals, we enhance the possibility that they will assume this identity and become adult criminals. “Family” court, in becoming more legalistic, is becoming the entryway into the criminal justice system. If we have criminalized the family court, we have no tools to divert youth from the rigid, impersonal judicial system. Without services to families mandated by family court, what sort of parents will these troubled youth become? REFERENCES
1974. Juvenile Justice Advocacy: Practice in a Unique Court. Practicing Law Institute, New York. 2. EDELSTEIN, c. 1977. Letter to the editor. Crime and Delinquency 23(2) :217. ~ . F O L L E T T , J. 1975. Testimony before the Temporary State Commission on Child Welfare, Albany, N.Y., Feb. 6; extemporary remarks after prepared testimony. 4. GEORGE, B . 1968. Gault and the Juvmile Court Revolution. University of Michigan Press, Ann Arbor. 5. In re Winship, 397 U S 358, 1970. 6.INSTITUTE OF JUDICIAL ADMINISTRATION (American Bar Association Juvenile Justice Standards Project). 1977. Standards Relating to Juvenile Delinquency and Its Sanctions. (tentative draft) 7. NATIONAL ADVISORY COMMITTEE O N CRIMINAL JUSTICE STANDARDS AND GOALS. 1976. Juvenile Justice and Delinquency Prevention: Report of the Task Force on Juvenile Justice and Delinquency Prevention. Law Enforcement Assistance Administration, Washington, D.C. 8. POLIER, J. 1973. Introduction. I n The Rights of Children, A. Wilkerson, ed. Temple University Press, Philadelphia. 9.SNYDER, P. AND MANGANO, A. 1968. Effect Of law guardian representation on the treatment of delinquent children. SOC. Wk 13 (3):102-108. 1.
BESHAROV, D.
