A New Role for Juvenile Courts?

Author: 
Emily Buss

A small group of people sits in a courtroom. At a table in the front near the judge's bench, two apparent professionals with large stacks of folders chat loudly and jovially about last night's game, then exchange funny memories about a mutual friend who just changed jobs. At some point their faces get a bit more serious, their voices drop, and they talk about "placement," "compliance," and "conditions," clearly confirming some sort of agreement, probably about the upcoming case, but it's not clear.

Next to one of them sits a teenage boy. He is slouched down in his chair, mostly looking at the floor. He is silent, unless addressed by his chatty tablemates, particularly the one sitting next to him, who occasionally turns to him with an isolated question or two. "How's school?" "Everything okay at your aunt's?"

Right behind the chatty professionals and silent teen are a couple of well-dressed women who are engaged in a conversation of their own. They occasionally break into the table chat, clearly talking about the silent teen, or "Aunt," or "Mom," or "Grandma." In the back of the courtroom sits an elderly woman. Is this "Aunt"? "Grandma"? Probably not "Mom." This is all evident from the woman's age and presence in the courtroom. No introductions are made.

At some point, someone walks in from a side door and begins to arrange things near the bench. She is warm and friendly with the table chatters, even joining in the chat. She looks at the teen and says, "Take off your hat." Without warning, she directs, "All rise," and a robed man walks in and takes the bench. One of the chatters makes a few statements in an acronym-studded rapid fire and then calls on one of the well-dressed women to share a report. She stands to do so, running through the details of school, home, and mental health treatment in a cascade of words. At the end of this report, she gestures to the back, "The Aunt" (ah, it's the Aunt) "is here in court, your honor. Is there anything you would like to say to the judge, Miss Jones?"

The Aunt most certainly has something to say. She has taken two buses to get to court, has waited for three hours with little or nothing to do or eat, and there is something, many somethings, that need to be done. Most on the list won't be done, at least not by anyone in the courtroom, but her commitment to the slouching teen is much appreciated and the looks and comments of all the adults in the room tell her so. The aunt's statement ends with a dramatic declaration to the judge, "I'm not sure how much more of this I can take," and the young person—the source of her exasperation but in no way the person to whom she is speaking—looks back down at the floor.

The second front table chatter gets his chance for a short burst of words after which he turns to the teen sitting beside him. "Do you have anything you want to say to the judge?" In response to this invitation the young person shrugs and shakes his head. If he is induced to talk, the adults on both sides of the bench display some combination of concern and goodwill (or serious parental warning if that seems appropriate) as they listen, but the impatience is visible on many faces as well. The teenager is being politely waited out. At least that's how it looks. The teen's statement leads to no questions or conversation, nor does it change the course of the decisions made in any way. It does provoke an explanation from one of the nicely dressed women about why whatever is on the teen's mind doesn't fit with current plans.

After a brief lecture from the judge about what the young person needs to do (and does he understand?) the judge walks out, and the rest of those in the courtroom begin to collect their things to leave. A few comments are made to the young person, and someone shakes his hand. The chatters burst back into animated conversation about their out-of-court life. The Aunt and the young person mumble something to one another, then look around to make sure the hearing is over and it is okay to go. Their irrelevance to the chatters soon makes this clear, and they leave.

I have witnessed some version of this scenario many times over, in many juvenile courts, in several states. As an academic researcher, I have observed hearings in both the juvenile justice and child welfare systems. Before that, I spent several years at the table, representing children in foster care.What I have found is that the scene is remarkably similar in all "dispositional" or" dispositional review" hearings involving adolescents, whether the adolescent came into state custody as a result of a criminal charge or allegations of parental maltreatment.

Important details vary: Often the young person is not present at all. Sometimes he appears in handcuffs with a guard. Sometimes the family members cry. Often the young person dabs his eyes with his sleeve, determined not to cry. There are worse cases, where the judge and lawyers ignore the young person and his family altogether or speak with shocking disrespect. But I chose the details in the scenario to describe standard juvenile court proceedings where all are trying to do their jobs well. The most concerned and dedicated judges and the most conscientious and hard working lawyers, caseworkers, and probation officers still come together to discuss young people's current needs and plans for the future in hearings that look like this one.

The problem is not, simply, that young people are not given a chance to speak; they often are. Rather, the problem is that, even when invited to speak, young people are in no way meaningfully engaged in the hearing. This is, in part, because it is hard for anyone other than the involved professionals to follow precisely which issues are being addressed in the hearing. These professionals, who handle case after case with one another in the same courtroom, follow hearing scripts and speak in a shorthand that is familiar to them and obscure to everyone else. It is also in part because, in an important sense, most of the decisions have been made before the hearing begins. Some decisions have been worked out between the lawyers and government actors over the phone, in the hallway outside the courtroom, or at meetings. And many decisions have been worked out by repetitive practice. There is a strong sense of "the way things are done" that drives the planning and decision-making process in both the child welfare and juvenile justice systems. The hearing serves to make those decisions official and to get the court's endorsement, but there is often very little left to be worked out.

If a young person succeeds in following the jargon-ridden presentations of the lawyers and various agents of the state, he sees that his role is that of a polite listener with a chance to say some words, not that of an active and engaged participant, let alone a chief author and executor of the plans for his future. This lack of engagement should be a concern at all hearings, but it is particularly troubling at dispositional hearings and subsequent reviews, where those plans, and the steps required to achieve them, are the primary focus.Whether and when they become parents, how far and in what direction they go in school, whether they obey the law, with whom they associate, and how healthy they will be are only some of the important life outcomes that will be shaped by the decisions made in juvenile court.

The planning process is important for young people not only because of its ultimate aim—their maturation into young adults capable of successful and independent adult functioning—but also because the process itself can develop skills and an understanding of self that can help them achieve that aim. But the current process is not designed to take any account of its developmental effects on young people, good or bad.

The Developmental Stakes of the Court Process

In both dependency and delinquency proceedings, at disposition and beyond, planning for a young person's future plays a central role. In dependency proceedings, federal law requires the juvenile court to consider the design and implementation of a "case plan," which covers education, placement, and all other important aspects of the young person's life, and a "permanency plan," which looks to the young person's future. In delinquency proceedings, state legislation requires juvenile courts to impose consequences for wrongdoing that are designed to take account of the young person's current needs and to prepare him for a productive, prosocial, adult future. But while state and federal law directs the juvenile court to order dispositions designed to help prepare young people for independent adulthood, young people's treatment in court by all present, including the most able and well-intentioned judges and attorneys, thwarts this preparation.

One of the primary developmental tasks for adolescents is learning to harness their newly acquired cognitive capacities to make "good decisions," that is, decisions that will allow them to assume responsibility for their own lives and function successfully in society. It takes practice to become a competent decision maker who can assess short- and long-term interests, develop plans to serve those interests, act on those interests, and then take responsibility for those actions. To be effective, this practice should occur in contexts in which adolescents care about the outcomes of the decisions being made. Moreover, to ensure that adolescents have the opportunity to learn from their mistakes, it is also important that the decision making occur in contexts in which the decision-making process can be monitored and supported by caring adults. I will argue below that court hearings can offer precisely this combination for children who are denied these opportunities in other contexts.

A second crucial developmental task of adolescence is identity formation, the process through which young people sort out who they are and how they relate to the rest of the world. This process depends on young people's interactions with others, both adults and peers. Through these interactions, we learn how others perceive us and what they expect of us. This helps us understand ourselves and how we fit into the various communities with which we interact. Our relationships also give us opportunities to try on various identities, to explore various roles and values through both formal and informal group activities. Through these interactions with others, we hash out our understanding of our beliefs, our values, our personalities, and our affiliations.

One aspect of this identity formation that is particularly important to adolescents' experiences in court is the development of an understanding of legal actors and institutions and one's own relationship to those actors and institutions. While there is an extensive literature that considers the legal socialization process in adulthood,research has just begun to explore how that socialization process relates to individuals' emerging identities in adolescence.

Along both of these developmental dimensions, young people's experience in juvenile court runs from empty to negative. Juvenile court proceedings offer young people little to no opportunity to practice making choices and taking responsibility for those choices, despite the focus at those proceedings on their current and future plans. To be sure, hearings are peppered with conditions, warnings, and consequences directed at young people, but these are tied to their obligations underp lans designed by others, not by themselves.Moreover, as the introductory scenario attempts to capture, the interactions young people have with various adults, including their caseworkers, their lawyers, and the judges, fail to convey any sense of connection between the young person and those adults or the communities they represent. If anything, the message young people get about their connection to the legal system and its actors is a destructive one: the court process puts on display an intimate and powerful community of legal actors representing government authority, and it is plainly a community from which the adolescent and his family are excluded.

It is easy to make the case that current court proceedings disserve adolescents' primary developmental needs, but it is less obvious that courts offer good opportunities to serve these needs better.When children grow up successfully in their own families, they develop their decision-making skills and emerging sense of social and personal identity in their schools, their homes, and through various social and civic activities. Where such intra- and extrafamilial opportunities are available and productive for young people, they can be expected to have a significantly greater developmental impact than court hearings, because the adults involved will generally have more contact and deeper relationships with these young people than court personnel can be expected to have.

For those involved in the juvenile justice and child welfare systems, however, these more conventional opportunities for skill-building and prosocial identity development may not be available. Adolescents in the child welfare system, who come from homes in which they were found to be abused and neglected, are less likely to have been provided with structured and supportive opportunities for independent decision making in those homes. Moreover, adolescents' foster care placements are the least stable of any age group, and they often end up in group homes rather than in family settings. Neither unstable foster family placements nor discipline-oriented group homes are conducive to fostering adolescents' experimentation with independent decision making or their exploration of groups and activities in their communities.

For a somewhat different set of reasons, adolescents in the juvenile justice system are also likely to be cut off from important developmental opportunities in their home communities. First, many of these adolescents have parents whose caregiving could be characterized as abusive or neglectful. Second, adolescents in the juvenile justice system are particularly likely to have attended poorly performing schools and to have failed or dropped out of school. And finally, even if they live in communities where productive extracurricular activities are offered, their own behavior, leading to their delinquency adjudication, often reflects a lack of engagement with those activities.

For young people in the juvenile justice and child welfare systems, juvenile court might be the last opportunity, and might also be a particularly good opportunity, for the state to assist them in developing their decision-making skills and to influence their emerging understanding of themselves and their relationship to the law and the government that implements it. "Last" for young people in the child welfare system because they will soon be expected to function as competent adults with far fewer ongoing supports than those afforded to young adults who grow up in their own families. And "last" for young people involved in the juvenile justice system because juvenile court jurisdiction is designed to capture young people on the brink of adulthood and help them develop prosocial skills, attitudes, and behavior before they age into the more purely punitive adult criminal justice system. And "particularly good," because the legal actors involved, the judges chief among them, so clearly represent government authority in a human form and in a context with evident relevance to the juveniles' lives.

As the legal entity with authority to oversee a young person's long- and short-term planning, the court has a unique ability to shift decision-making control to young people and to support that shift by removing obstacles and invoking the assistance of those state agents to whom responsibility for the adolescents has been assigned. Moreover, when a judge, whose legal authority is well understood, shows a young person respect and attention, we have reason to hope that that the young person may translate that positive, concrete, human relationship into a more positive conception of the legal system that the judge is understood to represent.

Developmental Opportunities in Child Welfare Proceedings

Experiments in the child welfare context suggest that judges can play a special role in facilitating the development of adolescents who have grown up in foster care if they are willing to structure their hearings in a dramatically different way. The most notable example of this shift in approach is the Cook County Juvenile Court's Benchmark Permanency Hearings, which have served as a model for a small number of other forward-thinking child welfare courts around the country. This approach was developed in large part by a single Cook County judge who was originally assigned to hear the cases of many of the older teens in foster care. At the Benchmark Hearings, the judge and the young person (ranging in age from 16 to 21) are the two primary participants, and they engage in a direct conversation focused on the young person's short- and long-term goals. As these goals are fleshed out, the judge can manifest the state's power and support by ordering the cooperation and support of the state actors charged with the young person's care.

With the young person's greater role in the proceedings comes greater responsibility and accountability as well. The young person develops a written "contract" with the judge that serves as the basis for services provided in support of the young person's ambitions and as a record of the commitments made by the young person. At the next hearing, which will often be scheduled within weeks or even days of the previous hearing, the court will assess the young person's compliance with those commitments as well as the state agency's compliance with the obligations imposed by court order at the previous hearing. The judge can thus hold the young person accountable in a context where she can also help problem solve and convey a message of ongoing support.

Developmental Opportunities in Juvenile Justice Proceedings

In juvenile justice proceedings, the developmental deficits the adolescents bring to court can also be expected to be great. And because their offending reflects problematic decision making and a certain openness to defining themselves as outside of, or even in opposition to, the system of laws and legal actors that govern them, we should be particularly eager to afford these young people opportunities to develop their decision-making competence and engage with government actors in positive ways.

A number of related bodies of research suggest that young people's experience in juvenile court might shape their social identity in positive or negative ways. Primary among them is the research that studies "legal socialization," that is, how we come to hold the views we hold about legal actors and legal institutions and whether and why we should obey the law. Social psychological research suggests that adults' treatment in court processes affects their attitudes about the law, and that they are more likely to see legal authority as legitimate and feel an obligation to obey the law if they have been shown respect and given an opportunity for meaningful participation in their judicial proceedings.

We might expect this effect to be more marked among adolescents, for whom formulating beliefs about self and society is a central developmental task. Preliminary research studying adolescents' response to police interactions does suggest a correlation between personal experience with legal actors and attitudes formed about the legal system.

Other research, conducted in different but relevant contexts, highlights the potential positive and negative effects of adolescents' treatment in juvenile court. Supporting the positive potential of significantly altered procedures is the research focused on "restorative justice" approaches, which correlates prosocial offender effects with the offender's opportunity for direct and supported engagement with his victim and the involved communities. Suggesting that status quo procedures could have a negative effect on adolescents' attitudes about the law are a constellation of theories, including "defiance theory" and "self-categorization theory," that correlate antisocial conduct, and society's response to that conduct, with the development of an out-group mentality.

The social scientific evidence suggests that young people in the juvenile justice system might be well served by a redesign of the postadjudicatory hearings that placed these young people at the center of the discussion, and the center of decision making and planning. But experimentation and change carry risks and costs, which most juvenile courts will be unwilling to take on in the context of overloaded dockets and underfunded budgets. As an academic, I hope to be in a position to mitigate some of those risks and costs, and to spur experimentation in juvenile court.

Emily Buss, the Mark and Barbara Fried Professor of Law, has spent her entire legal career working on issues related to children in the legal system. Before joining the Law School, she practiced for more than seven years in public interest child advocacy organizations, including the Child Advocacy Unit of the Maryland Legal Aid Bureau and the Juvenile Law Center in Philadelphia. In her academic career, she has worked with her students to help reform the foster care system, giving particular attention to the role of the courts, the transition from foster care to adulthood, and the placement and supports provided to extended family caregivers.

A longer version of this article was previously published at 6 Northwestern Journal of Law and Social Policy 318 (2011), and we thank the editors for their permission to publish this version here.

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