Before of children is the doctrine of “parens
Before the sixteenth century children were considered either property to
be traded or small adults, when by the age 5 or 6 were expected to assume
the roll of an adult. As the centuries moved forward the views of children
changed, children were seen not as miniature adults but as having a
distinct personality, that they were easily corrupted and needed to be
corrected to become morale and productive members of society.
In the colonial era of America the family was the basic unit of economic
production and the main outlet for social interaction also religion was a
main staple that held a community together and is where families turned to
when they had trouble in the home.
As the country grew so did the need for some type of institutions for
youth offenders. These places were called “houses of refuge” The youth in
these places were reformed into hard working productive members of society.
The stay in one of these places were in determined time or until they
reached the age of 18 or 21 depending on their crime and the willingness of
the youth to reform and become a responsible citizen.
By the end of the 1800s different types institutions and mechanisms were
developed to respond to the difficult children. Still, the problems
presented by the children who were believed to be in need of so type of
correction were the homeless, the neglected, abused and wayward as well as
the ones with criminal behavior. A new group of reformers called the “the
child savers”, advocated a new institution to deal with these youth
problems. Thus began the juvenile courts.
By the late 1800s the legal mechanism was in place for treating of youth
different from adults Examples
of this were that in some jurisdictions had set minimum age to which a
juvenile could be charged as an adult and placed in adult penitentiaries.
The legal philosophy justifying states intervening in the lives of
children is the doctrine of “parens patriae”(the state as parent) was given
the judicial endorsement in the case of Mary Ann Crouse who had been
committed to the Philadelphia House of Refuge by her mother as a punishment
and against her father’s wishes,. the Commonwealth Supreme Court of
Pennsylvania stated that it wasn’t a punishment but a benevolence, no due
process claim could be made by the father, and that the father had no
standing anyway because the commonwealth had the legal responsibility to
step in as to were the parents were irresponsible in their obligations to
An interesting question came up in the 1905 case of the Commonwealth vs.
Fisher where the Pennsylvania supreme court ruled that parens patriae
always trumps due process in the juvenile justice. When the Commonwealth
acts on parens patriae no due process protection is necessary. No
treatment plans are needed it is assumed that anything the Commonwealth
does to a child in its custody is better than what the parents could
provide. The Fisher case set the tone for juvenile justice up until the
An activist United States Supreme Court in the 1960s significantly
altered the juvenile justice system. That sets the tone for today’s
courts. Three cases that are worth looking at are Kent vs. the US (1966)
This is the first full scale examination of the juvenile justice system
brought on by the case of a 16 year old rapist who was transferred to adult
court. The justices ruled that such waivers or transfers should be
accompanied by a special hearing, the assistance of counsel, access to
records by such counsel, and a written statement of reasons for such
In re Gault (1967) A landmark case on the failure of the juvenile
justice system involving a 15 year old adjudicated delinquent on the word
of an Arizona sheriff’s deputy sentenced to 6 years for an offense
(telephone harassment) that carried a two month penalty if committed as an
adult. The Justices ruled that the juveniles deserve the right against
self incrimination (Miranda Rights) adequate notice of charge, the right
confront and cross examine accusers, assistance of counsel, and he rights
of sworn testimony and appeal. With this the juvenile courts became more
formal and adversarial.
The Third case is McKeiver v. Pennsylvania (1971) a seminal case that
slowed down the granting of due process rights to juveniles by denying them
a trial by jury. The Justices thought that the bench trials were adequate
and that America wasn’t yet ready to abandon the philosophy of juvenile
justice as a less than fully adversarial process.
The fundamental difference of the adult court vs. the juvenile court are
that the juveniles are given a little more latitude when the judge is
considering the sentence for the offender and the guidelines are differ in
the length of time and where the sentence is carried out.