Journal of Criminal Law and CriminologyVolume 51Issue 5 January-February Article 1

Winter 1961

Juvenile Court: Its Development and Some MajorProblemsRobert G. Caldwell

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Recommended CitationRobert G. Caldwell, Juvenile Court: Its Development and Some Major Problems, 51 J. Crim. L. Criminology & Police Sci. 493(1960-1961)

The Journal of

CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE

VOL 51 JANUARY-FEBRUARY 1961 NO. 5

THE JUVENILE COURT: ITS DEVELOPMENT AND SOME

MAJOR PROBLEMS

ROBERT G. CALDWELL

The author is Professor of Criminology in the State University of Iowa. He is also a member of thebar of Virginia. In addition to contributing articles and reviews to professional journals, ProfessorCaldwell is author of the following books: THE NEW CASTLE COUNTY WoRKnousE; THE PENITEN-TIARY IIOVEMENT IN DELAWARE; RED HANNAH: DELAWARE'S WHIPPING POST; and CRIMINOLOGY(textbook).

In this article, Professor Caldwell reviews the history and characteristics of the juvenile court,noting the important trends and significant variations that have marked the court's development.In addition, he presents and assesses the principal criticisms which have been leveled at the court'sphilosophy and operation. Concluding with several proposals concerning the future of the court,Professor Caldwell calls for a reconsideration of certain basic questions, including these: (1) Towhat extent should the court subordinate its potential as a moral agency in order to serve as a treat-ment center? (2) To what extent should the court embrace not only judicial functions but socialservice functions as well? (3) How far ought the court go in denying traditional legal safeguards tothe juveniles and their parents in order to maintain an informal procedure and atmosphere and protectthe juvenile from being marked as a criminal?

The author prepared this article at the special request of the Board of Editors in commemorationof the Journal's fifty years of publication.-EDrroR.

On July 1, 1899, the first juvenile court in theworld' began its legal existence in Chicago, Illi-nois.2 This event has been widely acclaimed as arevolutionary advance in the treatment of de-linquent and neglected children and as thebeginning of a new era in the cooperation of law,science, and social work in the field of child welfare.In fact, according to some writers, it foreshadows

1 There is some difference of opinion as to whetherthe first juvenile court was established in the UnitedStates. It is said, for example, that children's courtswere introduced by ministerial order in South Australiain 1889, and later legalized under a state act in 1895,but it is generally agreed that the United States shouldbe given credit for having the first real juvenile court.There is also some dispute as to whether Chicago, Illi-nois, or Denver, Colorado, had the first juvenile courtin the United States, but preference is generally givento Chicago, since the law approved in Colorado onApril 12, 1899, was essentially a truancy law althoughit did contain some of the features of a juvenile courtlaw. See Lou, JUVENILE COURTS IN THE UNITED STATES13-23 (1927); Lindsey, Colorado's Contribution to theJuvenile Court, THE CHILD, THE CLINIC, AND THECOURT 274-89 (Addams ed. 1925); CLARKE, SOCILLEGISLATION 375-77 (1957).

2 For easy reference to the first juvenile court act, see2 ABBOTT, THE CHILD AND THE STATE 392-401 (1938).

the time when all offenders, both juvenile andadult, will be treated individually through scien-tific and case work processes instead of punishedby the methods of criminal law.3

LEGAL ROOTS OF THE COURT

The juvenile court owes a great deal to Americaningenuity and enterprise, but it also has legalroots that can be traced back to principles thatare deeply embedded in English jurisprudence.These principles are to be found in the differentialtreatment which was given to children by theEnglish courts through the application of com-mon law and equity doctrines for the protectionof innocence and dependency.

One of the legal roots of the juvenile court is theprinciple of equity or chancery that originatedbecause of the rigidity of the common law and its

Lou, op. cit. supra note 1, at 2; Pound, The JuvenileCourt and the Law, YEARBOO, 1944, 1-22 (Nat'l Prob.Ass'n, 1945); Chute, Fifty Years of the Juvenile Court,YEARBOOK, 1949, 1-20 (Nat'l Prob. & Parole Ass'n,1950); Winnet, Fifty Years of the Juvenile Court: AnEvaluation, 36 A.B.A.J. 363-66 (1950).

ROBERT G. CA LDWELL

failure to provide adequate remedies in deservingcases. Eventually the chancellor, who was thehead of England's judicial system, was heldresponsible for giving greater flexibility to thelaw in such cases and for balancing the interests oflitigants in a more equitable manner as measuredby the merits of the individual case. Since equitywas thus dispensed by the Council of Chancery,the terms "equity" and "chancery" came to beused interchangeably. Through this system ofequity the king acted as parens patriae, or as"father of his country," in exercising his power ofguardianship over the persons and property ofminors, who were considered wards of the stateand as such entitled to special protection. Al-though originally equity was used chiefly toprotect dependent or neglected children who hadproperty interests, its action prefigured the pro-tective intervention of the state through the in-strumentality of the juvenile court in cases ofdelinquency.

The other legal root of the juvenile court is thepresumption of innocence thrown about childrenby the common law. According to its doctrines achild under the age of seven is conclusively pre-sumed incapable of entertaining criminal intentand therefore of committing a crime. Between theages of seven and fourteen, a child is presumed tobe incapable of committing a crime, but thepresumption may be rebutted by showing thatthe offender has enough intelligence to know thenature of his act. After the age of fourteen, chil-dren, like adults, are presumed to be responsiblefor their actions. Thus the creation of the juvenilecourt involved the extension of the principle thatchildren below a certain age cannot be held crim-inally responsible-a principle that has a long his-tory in the common law.4

HISTORICAL BACKGROUND OF THE COURT

In America, where English jurisprudence wasintroduced by the early colonists, such tendenciesas the increase in the complexity of social relation-ships, the growth of humanitarianism, and therise of the social sciences contributed to the ex-pansion of the area in which the child receiveddifferential treatment by law.5 Thus in order to

4 Lou, op. cit. supra note 1, at 1-12; CL.ARKE, op. cit.supra note 1, at 372-74; SUSStAN, LAW OF JUVENILEDELINQUENCY 15, 16 (1959); Pound, op. cit. supranote 3, at 4-8. See also Pound, The Rise of SocializedCriminal Justice, YEARBOOK, 1942, 1-22 (Nat'l Prob.Ass'n, 1942).

CALDWELL, CRIMINOLOGY 360 (1956).

protect children from confinement in jails andprisons, institutions for juvenile offenders wereopened in New York in 1825, in Boston in 1826,and in Philadelphia in 1828. Gradually suchinstitutions were constructed in other parts of thecountry. The foster-home movement, originatingin New York in 1853 with the establishment of theChildren's Aid Society, which specialized in theplacement of destitute and deserted children,soon spread to other states. Chicago as early as1861 provided for a commission to hear and de-termine petty cases of boys from 6 to 17. SuffolkCounty (Boston) in 1870 and New York in 1877instituted separate hearings for children, and thenin 1892 New York created separate dockets andrecords as well as separate trials for juvenilesunder 16. By the enactment of a statute in 1869,Massachusetts stipulated that an agent of theState Board of Charities should attend the trialsof children, protect their interests, and makerecommendations regarding them to the judge.Between 1878 and 1898 Massachusetts establisheda state-wide system of probation and thus initi-ated a movement that eventually carried thismethod of correction into every state in theUnited States. The years of the nineteenth centuryalso saw the enactment of laws for the regulationof child labor, the development of special servicesfor handicapped children, and the growth of pub-lic education.6

As this brief summary of some of the importantchanges in the field of child welfare indicates,there was a growing acceptance of public re-sponsibility for the protection and care of children,but as yet there was no legal machinery by whichjuvenile offenders could be handled, not as crim-inals according to the regular procedure of thecriminal court, but as wards of the state who werein need of special care, protection, and treatment.Meanwhile, however, Chicago welfare and civicorganizations, notably the Chicago Woman'sClub and the Catholic Visitation and Aid Society,were setting the stage for the appearance ofexactly this kind of machinery. As a result of theirpersistent agitation, a spirited campaign wasbegun for the establishment of a juvenile court,

6 Chute, op. cit. supra note 3, at 2, 3; SussmAmq, op.cit. supra note 4, at 11-14; TEETERS & REINEMANN.THE CHALLENGE OF DELINQUENcY 282-86 (1950);TAPPAN, COMPARATIVE SURVEY OF JUVENILE DELLN-QUENCY (Part I, North America) 14-16 (United NationsDepartment of Economics and Social Affairs, 1958);BLOCK & FLINN, DELINQUENCY: THE JUVENILE OF-FENDER IN AMERICA TODAY 307-12 (1956).

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and under the leadership of such organizations asthe State Board of Charities and the Chicago BarAssociation, this campaign was eventually suc-cessful in creating the world's first juvenile court.7

An examination of the historical background ofthis court shows that many varied influenceshelped to produce the climate in which it had itsorigin. In fact, its establishment may well beconsidered a logical and exceedingly imnortantdevelopment in a much broader movement for theexpansion of the specialized treatment given tochildren in an increasingly complex society. Al-though the idea of the juvenile court combinedthe already existing elements of institutionalsegregation, probation supervision, foster-homeplacement, separate judicial hearings, and anapproach that emphasized the rehabilitation of thejuvenile offender, even so, as Tappan explains, itdid constitute a significant achievement in judicialintegration by providing for a more systematic andindependent handling of children's cases.8

THE FIRsT JUVENILE COURT

The Juvenile Court of Cook County, the first ofits kind in the world, was established in Chicagoby a state law approved on July 1, 1899. Thislaw, entitled "An Act to Regulate the Treatmentand Control of Dependent, Neglected, and De-linquent Children," provided for the establishmentof a juvenile court in all counties with a populationof over 500,000, but since only Cook County had apopulation of that size, it alone received such acourt. In other counties circuit and county courtswere to handle cases arising under the law. Thejuvenile court was given jurisdiction over chil-dren under the age of 16 years who were adjudgedto be dependent, neglected, or delinquent, and itwas to have a special judge (chosen by the circuitcourt judges from among their number at suchtimes as they should determine), a separate courtroom, separate records, and an informal procedure,which meant that such important parts of thecriminal court trial as the indictment, pleadings,and jury (unless the jury was demanded by aninterested party or ordered by the judge) were tobe eliminated. A summons, unless it proved to be

7 Lathrop, The Background of the Juvenile Court inIllinois, and Hurley, Origin of the Illinois JuvenileCourt Law, THE CHrL, THE CLINIC, AND THE COURT290-97, 320-30 (Addams ed. 1925); 2 ABBOTT, op. Cit.supra note 2, at 330, 331; Chute, op. cit. supra note 3,at 3, 4; Lou, op. cit. supra note 1, at 20, 21; SussMAN,op. cit. supra note-4, at 13, 14.8T.I'PAN, op. cit. supra note 6. at 14, 15.

ineffectual, was to be used instead of a warrant inall cases, and the court was given authority toappoint probation officers, who were to servewithout compensation. The juvenile court act wasto be construed liberally so that the care, custody,and the discipline of the child should approximateas nearly as possible that which should be given byhis parents.9

If one bears in mind the following facts aboutthe first juvenile court law, it may help him toacquire a better perspective of the juvenile courtmovement in the United States:

1. The first court was not to be a new or inde-pendent tribunal but merely a special jurisdictionin the circuit court.

2. The juvenile court was to be a special courtand not an administrative agency. As DeanPound has said, "It was set up as a court of equity,with the administrative functions incidental toequity jurisdiction, not as a criminal court, andnot, as might have happened later, as an ad-ministrative agency with incidental adjudicatingfunctions." 0

3. The law did not stipulate that juveniledelinquents should be "treated" and not punished.It merely provided that the child should receiveapproximately the same care, custody, and disci-pline that his parents should give to him."

4. A juvenile delinquent was simply defined as"any child under the age of 16 years who violatesany law of this State or any city or village ordi-nance. " 12

5. In all trials under the law any interestedparty might demand, or the judge might order, ajury of six to try the case.'

In effect, then, the first juvenile court lawestablished the status of delinquency as "some-thing less than crime."1 In doing this it made twofundamental changes in the handling of juvenileoffenders that are especially noteworthy. First, itraised the age below which a child could not be acriminal from seven to sixteen and made a childwho was alleged to be delinquent subject to thejurisdiction of the juvenile court. Secondly, itplaced the operation of the court under equity orchancery jurisdiction and thereby extended theapplication of the principle of guardianship, which

9 2 ABBOTT, op. cit. supra note 2, at 392-401.1o PouND, op. cit. supra note 3, at 5.1 2 ABBOTT, op. cit. supra note 2, at 400, 401.12 Id. at 393.11 Ibid.'1 TAPPAN, op. cit. supra note 6. at 14.

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had been used to protect neglected and dependentchildren, to all children, including juvenile de-linquents, who were in need of protection by thestate. These two changes, in modified form, remainas essential characteristics of all juvenile courtlegislation.l-

TRENDS IN THE JUVENILE COURT MOVEMENT

Geographical Expansion. After Illinois had takenthe initiative, other states soon followed herexample and established juvenile courts. In fact,within ten years twenty states and the District ofColumbia enacted juvenile court laws. By 1920 allexcept three states had done so, and in 1945, whenWyoming took action, the list of states havingjuvenile court laws was finally complete. Todayall states, the District of Columbia,' 6 and PuertoRico have some kind of juvenile court legislation, 7

and the movement has had considerable successin other countries.Jurisdictional Extension. While the juvenile courtmovement was spreading, the jurisdiction of thecourt itself was being extended. In general, thedefinition of juvenile delinquency was broadened,and the types of nondelinquency cases (such asthose involving illegitimacy, mental and physicaldefectives, etc.) under the jurisdiction of the courtwere increased. Furthermore, the tendency was toraise the upper age level of the children subject tothe authority of the court from 16 to 17 or 18,and for some cases in a few states, to 21. In addi-tion, the juvenile court was given jurisdiction overadults in certain cases involving children-forexample, in cases in which an adult had con-tributed to the delinquency of a juvenile.1 9

15 CALDWELL, op. cit. supra note 5, at 360, 361.16 There are no federal juvenile courts. Children

under 18 who violate a federal law not punishable bydeath or life imprisonment may be transferred to astate juvenile court or proceeded against as juvenile de-linquents in a federal district court. SUSSMAN, op. cit.supra note 4, at 76.

'7 SUSSMAN, op. cit. supra note 4, at 15, 65-76; CALD-WELL, op. cit. supra note 5, at 361.

18 See SMITH, JUVENILE COURT LAWS IN FOREIGNCOUNTRIES (U. S. Children's Bureau Publication No.328, Washington, D. C.: U. S. Government PrintingOffice, 1951); CLAREE, op. cit. supra note 1, at 377-83;INT'L COM. OF THE HOWARD LEAGUE FOR PENAL RE-FORM, LAWLESS YOUTH: A CHALLENGE TO THE NEWEUROPE (London: George Allen and Unwin, Ltd.,1947); WATSON, BRITISH JUVENILE COURTS (London:Longmans, Green and Co., 1948); Henriques, Child-ren's Courts in England, 37 J. CRIM. L. & C. 295 (1946);Sellin, Sweden's Substitute of the Juvenile Court, 261ANNALS 137 (Jan. 1949); Pihlblad, The Juvenile Of-fender in Norway, 46 J. CRiM. L., C.&P.S. 500 (1955).

'9 CALDWELL, op. cit. supra note 5, at 361.

Increase in Court's Influence. Then, too, after thecreation of the juvenile court, it began to exert anincreasing influence on the principles and methodsused in the adjustment of many other familyproblems and in the handling of adolescent andadult offenders. For example, some cities, likeCincinnati, Philadelphia, and Wilmington, Dela-ware, established special courts, called family ordomestic relations courts, with jurisdiction overcases involving all kinds of family problems, suchas delinquency, dependency, neglect, adoption,illegitimacy, nonsupport, and crimes by membersof a family against one another. In effect, theoperation of these courts means that many of theprinciples and methods of the juvenile court arebeing applied to an increasing variety of socialproblems. Moreover, special courts for adol-lescents have been set up in certain cities, likeChicago, Philadelphia, and New York, in whichan attempt is being made to combine some of theprinciples and methods of the juvenile court withthose of the criminal court in proceedings againstyouthful offenders who arc above the juvenilecourt age but below the age of twenty-one. Amuch more systematic and inclusive program fordealing with this type of offender is representedby the various youth authorities that have beencreated in such states as California and Minne-sota. In their emphasis upon individual diagnosisand treatment these programs, too, reflect to someextent the spreading influence of the philosophyof the juvenile court. Finally, it may be said thatthis influence can also be seen in the use of pre-sentence investigation and probation in the casesof adult offenders in our criminal courts.-

The increasing complexity of American societyhas contributed significantly to these trends inthe juvenile court movement. Such interrelatedfactors as industrialization, urbanization, the un-

2No attempt will be made in this article to discussthe development of family and adolescent courts andthe various youth authorities. However, a considerablebibliography about these subjects now exists. See forexample, TEETERS & REINEMANN, op. cit. supra note 6,at 344-83, 762-65; BLocK & FLYNN, op. cit. supra note6, at 459-507; CALDWELL, op. cit. supra note 5, at 378-85; TAPPAN, DELINQUENT GIRLS IN COURT (1947);BECK, FIVE STATES (1951); LUDWIG, YOUTH AND THELAW (1955); Tappan, The Young Adult Offender underthe A inerican Law Institute's Model Penal Code, 19 FED.PROS. 20 (Dec. 1955); Youngdahl, Give the Youth Cor-rections Program a Chance, 20 FED. PROB. 3 (March,1956); Tappan, Young Adults under the Youth Author-ity, 47 J. CIMH. L., C.&P.S. 629 (1957); Melson, De-linquency and the Family Court, 23 FED. PROB. 13(Mar. 1959).

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precedented movement of populations, the amaz-ig utilization of natural resources, the rapid

accumulation of inventions and discoveries, andthe acceleration of transportation and communi-cation have tended to undermine the family andthe neighborhood and, forcing our communitiesto find additional sources of social control, havegiven considerable impetus to the establishmentof juvenile courts and sent into them an increasingnumber and variety of cases. In the meantime,other influences have more specifically affectedthe philosophy and methods of the juvenilecourt. Thus social workers, under the aggressiveleadership of such organizations as the UnitedStates Children's Bureau, the National Probationand Parole Association, and various other associa-tions now united into the National Association ofSocial Workers, have joined with psychiatrists instressing the importance of case work trainingand treatment services in the operation of thejuvenile court, and the efforts of a comparativelyfew well-organized, big-city juvenile courts atconventions and conferences have served to focusand intensify these influences. The resulting tend-ency has been to picture juvenile delinquencyas symptomatic of some underlying emotionalcondition, which must be diagnosed by means ofthe concepts and techniques of psychiatry, psy-chology, and social work, and for which treatment,not punishment, must be administered throughthe efforts of a team of psychiatrists, psychol-ogists, and social workers. Surprisingly enough,the legal profession, also, has contributed to thistendency through important court decisions re-garding the juvenile court that have, stressedits social service functions and minimized itslegal characteristics. The total effect of all thishas been to place increasing emphasis on the treat-ment of the individual and to give decreasingattention to his legal rights and the security ofthe community. Thus the balance between rights,on the one hand, and duties and responsibilities,on the other, which every court must seek tomaintain, has been upset as the juvenile courthas been pushed more and more into the role of asocial work agency.

CHARACTERISTICS OF THE JUVENILE COURT

Although the juvenile court has had an unevendevelopment and has manifested a great diversityin its methods and procedures, nevertheless, cer-tain characteristics have appeared which are

considered essential in its operation. As early as1920, Evelina Belden of the United States Chil-dren's Bureau listed the following as the essentialcharacteristics of the juvenile court: (1) separatehearings for children's cases, (2) informal orchancery procedure, (3) regular probation service,(4) separate detention of children, (5) specialcourt and probation records, and (6) provision formental and physical examinations -

.2 Of course,

many so-called juvenile courts have few of thesecharacteristics, and others possess them in varyingdegrees. However, in the opinion of many ob-servers, if a court does not have them, it cannotclaim to be a juvenile court.

A few years ago, Katharine Lenroot, then chiefof the United States Children's Bureau, pre-sented a summary of standards for the juvenilecourt which indicate the characteristics that manynow believe the court should have. 'these standardscall for the following:

1. Broad jurisdiction in cases of children undereighteen years of age requiring court action orprotection because of their acts or circumstances.

2. A judge chosen because of his special quali-fications for juvenile court work, with legaltraining, acquaintance with social problems, andunderstanding of child psychology.

3. Informal court procedure and privatehearings.

4. Detention kept at a minimum, outside ofjails and police stations and as far as possible inprivate boarding homes.

5. A well-qualified probation staff, with limita-tion of case loads, and definite plans for con-structive work in each case.

6. Availability of resources for individual andspecialized treatment such as medical, psycho-logical, and psychiatric services, foster family andinstitutional care, and recreational services andfacilities.

7. State supervision of probation work.8. An adequate record system, providing for

both legal and social records and for the safe-guarding of these records from indiscriminatepublic inspection.Y

These standards form much of the basis of theStandard Juvenile Court Act, the latest edition of

2 1 BELDIN, COURTS L THE UNITED STATES HEARING

CHnEREN'S CASES 7-10 (U. S. Children's Bureau Pub-lication No. 65, Washington, D. C.: U. S. GovernmentPrinting Office, 1920).

2 Lenroot, The Jvrenile Court Today, 13 FED.PROB. 10 (Sept. 1949).

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which was issued by the National Probation andParole Association in 1959,23 and to a great extentthey have been incorporated in the Standards forSpecialized Courts Dealing with Children, whichwas prepared by the United States Children'sBureau in 1954.24

THn PRESENT STATUS OF THE COURT

In the United States the juvenile court variesgreatly from one jurisdiction to another, mani-festing at present all stages of its complex develop-ment. And it should not be overlooked that itsphilosophy, structure, and functions are still inthe process of evolution. Rarely is the court adistinct and highly specialized one, and in themore rural counties it is largely of a rudimentarynature. Usually it is part of a court with moregeneral jurisdiction, the judges holding sessionsfor juveniles at regular or irregular intervals.25

Since there is this great diversity, no simpledescription of the juvenile courts of the UnitedStates can be given. However, it is possible toindicate in general terms their present status withrespect to certain important features.

Philosophy of the Court. In the words of Tappan,the juvenile court and its methods are "by nomeans a mere direct borrowing from chancery andcommon law," but, on the contrary, have emergedlargely from "the philosophy and techniques ofmodern case-work and, more particularly, theideologies of the child-welfare movement con-cerning the rights of children and the devices thatshould be used to meet their needs." In fact,"the operations of the specialized juvenile courtreflect the contemporary impact of caseworkoriented probation officers, administrative socialagency procedures, and other non-legal (if notdistinctly anti-legal) forces far more than they

23 A STANDARD JUVENILE COURT ACT (rev. ed.; NewYork: Nat'l Prob. and Parole Ass'n, 1959). This act isthe product of the efforts of the National Probationand Parole Association and the United States Child-ren's Bureau together with others who want to promotegreater uniformity and higher standards in the juvenilecourts of America. Its various editions have been pub-lished in the hope that they might be used as models inthe preparation and amendment of state laws. For theprovisions of the 1959 edition of this act and commentson its various sections see 5 NAT'L PROB. AND PAROLEASS'N JOUR. 323-91 (1959).2 4

STANDARDS FOR SPECIALIZED COURTS DEALINGWITH CHILDREN (U. S. Children's Bureau PublicationNo. 346, Washington, D. C.: U. S. Government Print-ing Office, 1954).

25 TAPPAN, op. cit. supra note 6, at 15, 24.

do the influence of either chancery or commonlaw, modern or ancient."26

Although generalizations about anything ascomplex as the juvenile court are always haz-ardous, it appears that the following are importantelements in the court's philosophy:(1) The Superior Rights of the State. The state isthe "higher or ultimate parent" of all the childrenwithin its borders. The rights of the child's ownparents are always subject to the control of thestate when in the opinion of the court the bestinterests of the child demand it. If the state hasto intervene in the case of any child, it exercisesits power of guardianship over the child andprovides him with the protection, care, and guid-ance that he needs. This is an adaptation of theancient doctrine of parens patriae, by which allEnglish children were made wards of the Crown. -7

(2) Individualization of Justice. A basic principlein the philosophy of the juvenile court is therecognition that people are different and that eachmust be considered in the light of his own back-ground and personality. The court, therefore,must adapt its actions to the circumstances of theindividual case by ascertaining the needs andpotentialities of the child and coordinating theknowledge and skills of law, science, and socialwork for the promotion of his welfare. This meansthe balancing of interests in an equitable mannerby administrative rather than adversary methodswithin a flexible procedure such as that providedby chancery. Dean Pound has called this "indi-vidualized justice." 28

(3) The Status of Delinquency. The state shouldtry to protect the child from the harmful brand ofcriminality. In order to accomplish this the law

26 Id. at 9. There is a difference of opinion regardingthe extent to which the principles of equity and thecriminal law contributed to the origin of the juvenilecourt. See Mack, Legal Problems Involved in the Estab-lishient of the Juvenile Court, THE DELINQUENT CHILDAND THE HoME 181 (Breckinridge & Abbott ed. 1912);POUND, INTERPRETATIONS OF LEGAL HISTORY 134, 135(1923); S. & E. T. Glueck, Historical and LegislativeBackground of the Juvenile Court, THE PROBLEM OFDELINQUENCY 258, 259 (Glueck ed. 1959); Lou, op. cit.supra note 1, at 2-7.

27 Mack, op. cit. supra note 26, at 181-87; Lou, op.cit. supra note 1, at 2-9; Schramm, Philosophy of theJuvenile Court, 261 ANNALS 101 (June 1949).

28 Pound, The Future of Socialized Justice, YEAR-BOOK, 1946, 6 (Nat'l Prob. Ass'n 1947); Schramm, op.cit. supra note 27, at 103, 104; Lou, op. cit. supra note 1,at 2-5; BLOCK & FLYNN, op. cit. supra note 6, at 317,318; STANDARDS FOR SPECIALIZED COURTS DEALINGWITH CHILDREN. op. cit. supra note 24, at 1, 2.

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created the status of delinquency, which is some-thing less than crime and is variously defined indifferent states. However, this still does notsatisfy some students of the court who advocatethe removal of even the "delinquency tag," whichthey claim is just another harmful label, andassert that delinquency acts have no significanceexcept as symptoms of conditions that demandinvestigation by the court.29(4) Noncriminal Procedure. By means of aninformal procedure the juvenile court functionsin such a way as to give primary consideration tothe interests of the child. In general the courtshave held that the procedure of the juvenilecourt is not criminal in nature since its purposeis not to convict the child of a crime, but toprotect, aid, and guide him, and that, therefore,it is not unconstitutional if it denies him certainrights which are guaranteed to an adult in acriminal trial."(5) Remedial, Preventive, and Nonpunitive Purpose.The action of the juvenile court is to save thechild and to prevent him from becoming a criminal.It seeks to provide him with about the same careand protection that his parents should give him.Although, as we have explained, the first juvenilecourt law did not stipulate that the child shouldnot be punished, many subsequent court decisionsand most of the literature on the subject insistthat the substitution of treatment for punishmentis an essential element in the philosophy of thecourt.3'

Geographical Area Served by the Court. The countyis the geographical area served by most juvenilecourts in the United States, but for some thejurisdictional unit is the town, the city, the

borough, or the judicial district. Since the county

is the conventional unit of state government andof many private organizations, its use as the

29 Mack, op. cit. supra note 26, at 189; Sussex-w, op.cit. supra note 4, at 20; TAPPAN, op. cit. supra note 6,at 14, 15.

30 CLAR.E, op. cit. supra note 1, at 410; Lou, op. cit.supra note 1, at 10. For a convenient digest of some ofthe important cases regarding the constitutionality ofthe juvenile court, see THE PROBLEm OF DELINQUENCY334-506 (Glueck ed. 1959).31 Mack, op. cit. supra note 26, at 190; INT'L Coav. OF

THE HoWARD LEAGUE FOR PENviL R.EFORM, op. cit.supra note 18, at 9-21; STANDARDS FOR SPECIALIZED

CouRTs DEALING WITH CHILDREN, op. cit. supra note24, at 1; Chute, op. cit. supra note 3, at 1; Lou, op. cit.supra note 1, at 7; Hurley. op. cit. supra note 7, at 328;CLARKE, op. cit. supra note 1, at 410-15.

jurisdictional area for the court has obviousadvantages in the coordination of the court'swork with that of other agencies interested inchild welfare. However, most counties cannotafford to maintain courts at modern standards,and even if they could, the volume of work wouldnot justify the necessary expense. In some statesthis problem could be solved by making the areaserved by the juvenile court the same as thejudicial district served by other courts in the stateand thereby enable one juvenile court to takecare of the cases of two or more counties. Utah,Connecticut, and Rhode Island have pushedbeyond this and, establishing state systems ofjuvenile courts, have created larger jurisdictionaldistricts within their borders.n

Types of Juvenile Courts. There are about 3000juvenile courts in the United States, althoughactually many are only slightly different fromcriminal courts. In referring to the inferior qualityof many juvenile courts, Lowell Carr has said,"In well over 2000 counties in the United Statesnobody has ever seen a well-staffed, modemjuvenile court in action.""4 Even New York City,a wealthy community with relatively high welfarestandards, has fallen considerably short of theideal level of performance set for the juvenilecourt.

35

Juvenile courts in the United States may beclassified into these three types: (1) "designatedcourts," such as municipal, county, district, andcircuit courts which have been selected or desig-nated to hear children's cases and while so func-tioning are called juvenile courts; (2) independentand separate courts whose administration isentirely divorced from other courts; and (3)coordinated courts, which are coordinated withother special courts such as domestic relations or

family courts. The great majority of the juvenilecourts are "designated courts," and even many

of the separate and independent ones are presidedover by judges from other courts so that their

"I Carr, Most Courts Have To Be Substandard, 13FED. PROB. 29 (Sept. 1949).

13 SussumA, op. cit. supra note 4, at 25; Larson,Utah's State-Wide Juvenile Court Plan, 13 FED. PROB.15 (June, 1949).

14 Carr, op. cit. supra note 32, at 31. See also Dobbs,Realism and the Juvenile Court, 31 Focus 104 (July,1952).35 TAPPAN, op. cit. supra note 6. at 15, 16. For a care-

ful study of New Yorks juvenile courts. see KAII, ACOURT FOR CHILDREN (1953).

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separateness and independence may be morenominal than real.36

Jurisdiction of the Court. All juvenile courts havejurisdiction in delinquency cases, and almost allof them have jurisdiction in cases of dependencyand neglect as well. In addition, some haveauthority to handle other problems such asfeeble-mindedness, adoptions, illegitimacy, andguardianship. Although the definition of de-linquency varies from state to state, in moststates the violation of a state law or municipalordinance (an act which in the case of an adultwould be a crime) is the main category of de-linquency. Yet in all states delinquency is morethan this, including such items as habitual truancy,incorrigibility, waywardness, and association withimmoral persons.

Juvenile court laws differ also with respect tothe age of the children over whom the court hasjurisdiction. The laws of most states do notspecify any lower age limit, merely providingthat children under a certain age are subject tothe jurisdiction of the court. Most states makeeighteen the upper age limit; some set it at sixteenor seventeen; and a few put it as high as twenty-one. In some states the upper age limit differsaccording to the sex of the child. Many statespermit the juvenile court, after it has once ac-quired jurisdiction over the child, to retain juris-diction until he has reached twenty-one.

In many states the juvenile court does not haveexclusive jurisdiction over all delinquency casesbut has only concurrent jurisdiction with thecriminal court, delinquency cases being handledby either court. Often, however, such concurrentjurisdiction is limited by law to cases of childrenabove a specified age or to cases involving certainoffenses or to certain counties. Furthermore, inmany states certain offenses, for example, murder,manslaughter and rape, are entirely excluded fromthe jurisdiction of the juvenile court, and in thesestates children charged with such offenses aretried in the criminal court.

The jurisdiction of the court is affected in stillanother way by the provision in most states thatit may exercise authority over adults in certaincases involving children. Thus in many statesthe juvenile court may require a parent to con-tribute to the support of his child, or it may try

3 6 TEETERS & REINEMANN, op. cit. supra note 6, at295-97.

adults charged with contributing to the delin-quency, neglect, or dependency of a child.37

The Judge and the Probation Officer. Although theeffectiveness of the juvenile court depends to avery large degree upon the efficiency of its person-nel, relatively few courts have staffs that areespecially qualified for their work. In most juvenilecourts the judges have been appointed or electedon the basis of their general qualifications forjudicial work, and they divide their time betweenadult and juvenile cases. Only in a very fewcourts has the judge been selected because he hassome specialized training or experience in thehandling of children's problems. Often, however,a referee is appointed to assist the judge in theperformance of his juvenile court duties. Althoughconsiderable progress has been made in improvingthe quality of probation in some parts of thecountry, the great majority of courts are stillwithout the services of a sufficient number of well-qualified and adequately paid workers. 38

Procedure of the Court. Police action initiates theprocedure in most delinquency cases, but oftenit begins with action by a parent or other privateperson or with a referral by a social agency oranother court. In recent years, about 50 percentof the delinquency cases have been handledinformally or unofficially, that is, without anofficial record or hearing, but with the judge orsomeone else, such as a probation officer, takingthe necessary steps to dispose of the case. Thetypes of cases that are handled in this way varygreatly from court to court, but the tendencyseems to be to reserve official hearings for olderchildren and those brought before the court onserious charges.

When a case is handled officially, a petition(which is merely a statement containing importantfacts of the case, such as the names and addressesof the child and his parents or guardian and thecause of the action) is filed in the court, and thecase is then scheduled for a hearing. If the childis not being held in detention and his presence isrequired, a summons ordering him to appear, orin some cases a warrant for his arrest, is issued.

3' SUSSMAN, op. cit. supra note 4, at 18, 19, 26-28.38 Lenroot, op. cit. supra note 22, at 14, 15; Killian,

The Juvenile Court as an Institution, 261 ANNALS 92(Jan. 1949); TEETERS & REINEuANN, op. cit. supranote 6, at 313-19; TAPPAN, op. cit. supra note 6, at 13;Davis, The Iowa Juvenile Court Judge, 42 J. Crim. L.,C.&P.S. 338 (1951).

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In most jurisdictions a prehearing investigationis conducted so that both the hearing and thedisposition of the case can be based on the factsso obtained. Some jurisdictions, however, requirethat the child must be adjudged delinquent beforehis case is investigated. In these jurisdictions thehearing is held first, and if the child is found to bedelinquent, the court is adjourned, the investi-gation is completed, and the information is thenused by the court in the disposition of the case.Unfortunately, inadequacy of personnel andexcessive case loads often prevent the investi-gation from being more than a superficial inquiry.

Juvenile court hearings are usually less formalthan trials in the criminal court, but the degreeof informality varies considerably throughoutthe country. Privacy, however, characterizes mosthearings; only persons who are definitely con-nected with the case are permitted to attend.Seldom is a prosecuting attorney or a counsel forthe defense present during the hearing, andalthough jury trials are permitted in many juris-dictions, usually juries are not used. However,the right of appeal in one form or another isavailable in most jurisdictions.M

Disposition of Cases. After the hearing, the casemay be disposed of in one of several ways. Thecase may be dismissed; a court order may beissued stipulating that the child be examined andtreated by a physician, psychiatrist, or psy-chologist or placed in a hospital or some otherinstitution or agency for whatever care may benecessary; the child may be placed on probationor in a foster home; or he may be committed to acorrectional institution. According to the UnitedStates Children's Bureau, almost half of alldelinquency cases disposed of by the juvenilecourts during 1957 were dismissed, adjusted, orheld open without further hearing, and aboutone-fourth were placed on probation. 40

Cooperation with Other Agencies. The success ofthe juvenile court depends to a great extent uponthe work of other agencies, such as the police,schools, clinics, churches, welfare organizations,and correctional institutions, and it in turn can

39 SussmtAN, op. cit. supra note 4, at 29-37; NAT'LCONF. ON PREVENTION AND CONTROL OF JUVENILEDELINQUENCY, REPORT ON JUVENILE COURT LAWS 6, 7(Washington, D. C.: U. S. Government Printing Office,1947).

40 Sussu iN, op. cit. supra note 4, at 45-50; UNITEDSTATES CHILDREN'S BUREAU, JUVENILE COURT STA-TISTICS, 1957, 2 (Statistical Series, No. 52, 1959).

significantly contribute to the success of theseother agencies. It should be obvious, then, thatthe court should play an important part in pro-moting greater coordination among the law-enforcement and welfare agencies of the com-munity and in the establishment of a delinquencyprevention program. Some courts have coordinatedtheir work very closely with other agencies, butmany have done very little to foster this relation-ship.

41

CRITICISMS OF THE JUVENILE COURT

Ever since the juvenile court was establishedover sixty years ago, it has been severely criticizedby both its friends and its enemies. 42 At first muchof the criticism questioned the constitutionalityof the court, but as one judicial decision afteranother supported the court, the attack againstit shifted toward its modification or improvement.In fact, today few critics would have the temerityto advocate the abolition of the court, and itseems, as Dr. William Healy has said, that "thejuvenile court is here to stay. 4 3 However, since somany well informed persons have joined in thecriticism, several of the important questionsraised by them require our examination.

1. Has the juvenile court dealt effectively withjuvenile delinquency? This question is so complexthat perhaps any discussion of it can succeed inonly raising other perplexing questions. It is truethat various statistical attempts have been madeto evaluate the effectiveness of the juvenilecourt. Several of these show that from aboutone-fourth to over two-fifths of older juvenilesand adult offenders have previously been dealtwith by the court.44 Another study, made by theGluecks, revealed that 88.2 percent of the juvenilesincluded in their analysis again became delinquentwithin five years after the end of their officialtreatment by the juvenile court of Boston, and

41 Schramm, op. cit. supra note 27, at 104, 105; NATL

CONFERENCE ON PREVENTION AND CONTROL OF JUVE-NILE DELINQUENCY, REPORT ON JUVENILE COURT AD-MINISTRATION 18-20 (Washington, D. C.: U. S. Govern-ment Printing Office, 1947); BRECKINRIDGE, SOCIALWORK AND THE COURTS 231-40 (1934).

42 Much of the discussion of the criticisms of thejuvenile court presented here is an adaptation of thatcontained in the author's text, CpIumuoLOGY, publishedby the Ronald Press Co. in 1956. See pp. 370-78.

-3 Healy, Thoughts about Juvenile Courts, 13 FED.PROB. 18, 19 (Sept. 1949).

44 SUTHERLAND, PRINCIPLES OF CRIMINOLOGY 316,317 (1947).

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that 70 percent of them were actually convictedof serious offenses.

45

However, studies such as these have not beenconclusive. Not only have comparatively fewcourts been carefully studied, but also the findingsof the investigations have not been consistent.Besides, there are all kinds of juvenile courts,many being such in name only, and an evaluationof one is hardly a fair appraisal of others. Then,too, the cases covered by the investigations oftendo not constitute a representative sample ofthose coming before the court, and the recidivismnoted is only that of which there is a record.Actually no one knows how much undetecteddelinquency and crime there is among those whohave been previously handled by the court.Furthermore, the court is only one part of a verycomplex culture, with which it is inextricably andfunctionally related, and no one, therefore, knowsto what extent influences other than (and perhapseven in spite of) that of the court caused theimprovement in those who subsequently did notbecome recidivistic.

But suppose it could be proved that the juvenilecourt has failed, should delinquents be tried inthe criminal court? Certainly no informed personwould be in favor of this. Is the solution, then,"bigger and better" juvenile courts? To thisquestion no simple answer can be given. Mostcounties have too few people to justify, others toolittle wealth to afford, better juvenile courts.Besides, large segments of our population arealready restive under the burden of heavy taxa-tion. Should taxpayers be asked to contributemore for the improvement of our juvenile courts?Should some of the funds that are now beingspent for other purposes, for example, for theoperation of public schools, be diverted to thedevelopment of the juvenile courts?48

But even the "biggest" and the "best" courtcould do little to change the conditions that arecausing crime and delinquency. No systematicscience of human behavior exists, and the knowl-edge that we do have requires the support ofpublic opinion if it is to be used most effectively.Furthermore, how much judicial regulation will acommunity tolerate? If a community is to preservecertain rights and privileges, how much regulation

41 S. & E. GLuEcK, ONE TrousAND JUVENiLE DE-LINQUENTS 167 (1934). For opposing views regardingthis study, see Sheldon Glueck's and Harry L. East-man's articles in YEARBOOK, 1934, 63-103 (Nat'l Prob.Ass'n, 1934).

48 CALDWELL, op. cit. supra note 5, at 371.

should it tolerate? Obviously, questions of thiskind can be considered only as they are related toother values in our culture.

Still other questions must be raised. What ismeant by a "better" or the "best" juvenile court?What criteria should be used to measure thequality of a court? There is considerable dis-agreement regarding these questions. Some claimthat the provisions of the Standard Juvenile CourtAct should be used as the criteria for evaluatinga juvenile court, but others would refuse to endorsesuch a proposal. However, in spite of the fact thatso many difficulties interfere with attempts toevaluate the effectiveness of the juvenile court,certain steps can be taken now to improve thequality of its work. Some of these will be mentionedlater in the discussion of the problems of thecourt.

2. What types of cases should be handled by thejuvenile court? Like the first question, this one istoo broad to be examined thoroughly in an articleof this kind, but reference to a few specific situa-tions will indicate why it has been raised.

After the juvenile court was established itbecame the one agency in most communities whichcould provide some kind of social service for theincreasing number of children who needed careand protection, and so it tended to assume re-sponsibility for a growing volume of cases. More-over, this tendency was accelerated by the passageof laws that stipulated that certain types ofchildren were to be cared for at public expense.In general the court did not resist this tendency,and in some communities court officials actuallyencouraged it so that they might gain in powerand influence. And once the court had assumedresponsibility for certain cases, it tended to keepthis responsibility even after the need for doingso had disappeared. As a result, the juvenilecourt has become a catchall for a great variety ofcases requiring public attention.

As educational facilities and child welfareservices have developed throughout the country.there has developed an increasing demand for thetransfer of certain cases from the jurisdiction ofthe court to that of the schools and welfareagencies. However, it is difficult to determinejust what criteria could be employed in dividingthe cases between the court and other agencies.Some who speak for the welfare agencies say thatthe juvenile court could exercise functions thatare primarily judicial and pertain to law-enforce-

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ment, while the welfare agencies could exercisefunctions that are primarily administrative.4 Butthis suggested standard is not sufficiently preciseto indicate exactly where the line is to be drawn.Undoubtedly it would mean the transfer of manyneglect and dependency cases to welfare agencies,but opponents have stressed the complexity ofthe situation. Neglect, dependency, and delin-quency are often interrelated, and delinquencycases involve much administrative work. Besides,many neglect and dependency cases require theexercise of authority supported by the law. Inmany instances only the court has sufficientauthority to enforce decisions and to protect therights of children and parents, and depriving thecourt of its administrative duties would un-necessarily complicate the handling of everydelinquency case.

The suggestion that certain cases, such astruancy and incorrigibility, be transferred fromthe juvenile court to the school has likewisestirred up a controversy. Those in favor of thetransfer have argued that schools are in closecontact with children and their families, have agreat deal of information about them, and arealready doing a considerable amount of work withthem through the efforts of visiting teachers,counselors, clinicians, and parent-teachers' associa-tions; that children should not be exposed tocourt experience, with its stigmatizing and trau-matic implications, except as a last resort; andthat the schools would develop more effectiveprograms for the prevention of delinquency ifthey were not permitted to shift so many of theirresponsibilities to the court. On the other sideof the controversy, many have contended thatthe personnel of the schools are already over-worked and underpaid and should be relieved ofsome of their responsibilities instead of beinggiven more; that schools do not have enoughauthority to handle many of the cases; that thestigma of a law-enforcement agency would beattached to the schools if they had to handle

47 See, for example, Nutt, The Responsibility of theJuvenile Court and the Public Welfare Agency in theChild Welfare Program, YEARBOOK, 1947, 206 (Nat'lProb. and Parole Ass'n, 1948). See also, Nutt, TheFuture of the Juvenile Court as a Case Work Agency,YEARBOOK, 1939, 157 (Nat'l Prob. Ass'n, 1939); Nutt,Juvenile Court Function, YEARBOOK, 1942, 94 (Nat'lProb. Ass'n, 1942); Geiser, The Court as a Case WorkAgency, YEA BooK, 1942, 105 (Nat'l Prob. Ass'n, 1942);Mead, The Juvenile Court and Child Welfare Services,YEARBOOK, 1947, 224 (Nat'l Prob. and Parole Ass'n,1948).

delinquency cases; and that many children arenot attending school or are in private and parochialschools and thus beyond the authority of publiceducational officials.

Actually there is much merit in the argumentson both sides of this controversy. Some of thework of the court can be safely transferred toeducational and welfare agencies, but manyadministrative duties must be retained by it.Just where the line will be drawn will probablyhave to be worked out on a local basis throughthe judicious balancing of needs and resources andthe development of greater cooperation amongcourts, schools, and welfare agencies. 4

Apart from this, however, other critics of thecourt have insisted that older juveniles whocommit serious crimes, such as murder, man-slaughter, rape, and robbery, should not be dealtwith in the juvenile court but should be tried inthe criminal court. In fact, many states have lawsgiving the criminal court either original or ex-clusive jurisdiction over such cases. Opponentsof this policy have branded it as reactionary andin violation of the philosophy of the court. Ac-cording to this philosophy, they explain, the courtshould have exclusive jurisdiction over all childrenrequiring judicial action, should guide and protectthose who come before it, and should not stig-matize or punish them or hold them up as examplesfor others.

In reply to this argument, those who believethat older juveniles charged with serious offensesshould be tried in the criminal court contend:(1) that the upper age limit of children, especiallythose charged with serious crimes, over whom thejuvenile court should have jurisdiction is a de-batable subject; (2) that although the juvenilecourt uses words like "guidance," "care," and"protection," the fact is that it, too, resorts topunitive methods in handling children; (3) thatthe public, regardless of what the philosophy ofthe court may be, looks upon the court as a place

48 Eliot, Case Work Functions and Judicial Func-tions: Their Coordination, YEARBOOK, 1937, 252 (Nat'lProb. Ass'n, 1937); Pound, op. cit. supra note 3, at 14,15; Schramm, The Juvenile Court Idea, 13 FED. PROB.21 (Sept., 1949); CONTROLLING JuvEN I DELIN-QUENCy (U. S. Children's Bureau Publication No. 301,Washington, D. C.; U. S. Government Printing Office,1943); Hyatt, The School, the Juvenile Court, and theSocial Attitude, YEARBOOK, 1931, 49 (Nat'l Prob.Ass'n, 1931); Harper, School and Court RelationshipsConcerning Behavior Problems, YEARBO0K, 1932 and1933, 163 (Nat'l Prob. Ass'n, 1933); Taber, The Judgeand the Schools, YEARBOOK, 1944, 41 (Nat'l Prob.Ass'n, 1945).

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where violators of the law are sentenced andpunished; (4) that one measure of the supportthat courts and the law receive is the intensityof the feeling that law-abiding citizens haveagainst law violators; and (5) that failure topunish serious violators not only encourages othersto commit crimes but also discourages law-abidingcitizens from supporting law-enforcement agencies.

In this controversy, also, there is much to besaid in favor of both sides. Certainly no court canexist apart from the community in which itfunctions and to which it must look for support,and to hold that the court should try to ignorethe deep feelings and strong desires of the peoplewhose values it is called upon to enforce is ahighly unrealistic and arbitrary attitude. It ispartly because of this fact that the StandardJuvenile Court Act includes a provision that

juveniles sixteen years of age or older chargedwith serious crimes may be tried in the criminalcourt if the juvenile court deems this to be in thebest interest of the children and the public. 49

However, if the case of a youthful serious offenderis heard in a juvenile court, then this should bedone according to clearly defined rules of pro-cedure, and he should be protected from arbitraryaction and abuse of authority just as the adultfelon is in the criminal court.

There has also been some recognition of thelimitations of the juvenile court for dealing witholder and more serious offenders in states wherethe pressure has been to raise the upper age limitof the court and to give it exclusive jurisdictionover all children. For example, in California wherethe court had exclusive jurisdiction to the age ofeighteen and concurrent jurisdiction to the ageof twenty-one, a special study commission in 1949recommended that the juvenile court judge shouldbe required to decide specifically whether ajuvenile over sixteen charged with a crime couldbe better handled by the juvenile court or by acriminal court. °

3. Are the rights of the child and his parents pro-tected in the juvenile court? As the juvenile courthas developed it has become increasingly domi-nated by the ideas and methods of child welfareand case work authorities. Contributing to thistendency have been the occupancy of manyjuvenile court positions by persons who have beentrained in social work or who are in agreement

19 A STANDARD JUVENILE COURT AcT, op. cit. supranote 23, §13.

-1 TAPPAN, op. cit. supra note 6, at 8.

with its principles, the very infrequent presenceof attorneys in the court, the inadequate legaltraining of many of its judges and referees, thegeneral exclusion of the public and the press fromits hearings, and the rarity of appeals from itsdecisions. As a result of this departure of thejuvenile court from some of the most basic con-cepts of justice in our culture, there has appeareda growing controversy over whether the rights ofthe child and his parents are being endangered bythe increase in the authority and administrativefunctions of the court. 5' In this controversy,criticism has been directed especially against (1)broad definitions of delinquency, (2) unofficialhandling of cases, (3) prehearing investigations,and (4) extreme informality of procedure.'

In general these aspects of the court have beendefended by the claim that they facilitate pre-ventive and nonpunitive action by the court.Thus advocates of a broad definition of delin-quency contend that it permits the court to actin situations which warrant its intervention with-out becoming entangled in technical disputes overthe meaning of terms. In conformance with thispoint of view, some states have broadened thedefinition of delinquency by substituting a fewgeneral categories of delinquency for a number ofspecifically defined acts. The laws of some otherstates and the Standard Juvenile Court Act53 havegone beyond this and do not define delinquencyat all. Instead, without using the term delin-quency, they merely describe certain situationsand classifications of children over which thecourt has jurisdiction. This avoidance of the

11 Id. at 2. Administrative functions of the court in-clude such activities as investigation of cases, planningfor the care of children, supervision of probationers, andfoster-home placement. These are to be contrasted withthe court's judicial functions, which refer to such mat-ters as adoption and guardianship and decisions re-garding custody and commitment.

52See TAPPAN, JUVENILE DELINQUENCY 195-223(1949); Schramm, op. cit. supra note 48, at 19-23;Pound, op. cit. supra note 4, at 1-22; Waite, How FarCan Court Procedure Be Socialized without ImpairingIndividual Rights? 12 J. Cgim. L.& C. 339 (1921);Rubin, Protecting The Child in the Juvenile Court, 43J. CRim. L., C.&P.S. 425 (1952); KAHN, op. cit. supranote 35, at 95-135; Nunberg, Problems in the Structureof the Juvenile Court, 48 J. CRam. L., C.&P.S. 500(1958); Herman, Scope and Purposes of Juvenile CourtJurisdiction, 48 J. Cirm. L., C.&P.S. 590 (1958);Diana, The Rights of Juvenile Delinquents: An Ap-praisal of Juvenile Court Procedure, 47 J. CRm. L.,C.&P.S. 561 (1957); Allen, The Borderland of theCriminal Law: Problems of "Socializing" Criminal Jus-tice, 32 Soc. SERv. REv. 107 (1958).

13 A STANDARD JUVENILE COURT AcT, op. Cit. supra

note 23, at 8.

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"delinquency tag," it is argued, enables the courtto help and protect the child without stigmatizinghim in any way. The unofficial handling of caseshas been justified on the grounds that officialcourt action is not needed in many situations, thatit enables the court to assist children who, al-though not yet within its jurisdiction, are indanger of becoming so, and that the official labelof delinquency should be avoided as much aspossible. Prehearing investigations should beused, it is asserted, because they provide importantfacts for the hearings and thus allow the hearingsthemselves to be utilized as part of the treatmentprocess. Extreme informality of procedure isfavored by those who believe that only by mini-mizing all rules can the philosophy of the juvenilecourt gain full expression. They maintain thatrules are not important anyway since the state isnot bringing action against a defendant, as itwould in a criminal trial, but is rather acting as aguardian of the child, and that therefore we neednot be concerned about protecting the child frompossible harm.

However, a number of important points havebeen stressed on the other side of the controversy,and an examination will now be made of some ofthese. Broad definitions of delinquency and theunofficial handling of cases,. it is contended,channel an increasing number of children nothaving serious problems into courts which, bygeneral admission, are overloaded, understaffed,and inadequately equipped for preventive work.Handling by thesc c-urts not only gives suchchildren the appearance of being seriously de-linquent in the eyes of the public, and thus actuallydefeats the alleged purpose of this practice, butalso exposes them to the danger of being treatedas if they were serious delinquents or, what isworse, of being indiscriminately committed tocorrectional institutions when perhaps they aresuffering only from neglect or dependency. More-over, even when the court can engage in extensivepreventive work, this activity may discourage thedevelopment of other agencies better organizedand equipped to do this work.

Besides, it is argued, where is the child who doesnot have a problem? With little effort hundredsof children who have problems can be found inany community and brought into court. And ifthe court is not vigilant, it may be used by parentsas a weapon against children in stituations wherethe parents themselves are to blame. Thus the

amily is given a crutch at a time when it shouldbe encouraged to strengthen itself through itsown efforts-and other agencies can assist thefamily to do this far more effectively than can thecourt.

Furthermore, it is asserted, the situation is notimproved by the use of the prehearing investi-gation. Too often this tends to become the hearingitself-a process during which the facts aregathered and the decision regarding disposition isreached even before the court has determinedwhether the child is delinquent. Indeed, his merepresence in court may be interpreted as pre-sumptive evidence of his delinquency, and thismay be easily inflated to conclusive evidence ifsome personal problem in his history can bediscovered and dilated upon by the probationofficer. If the hearing has been conducted with anextremely informal procedure, the child will findthat the decision can be overturned only withgreat difficulty. If, as its advocates claim, theprehearing investigation is not to be used toacquire evidence against the child, then there isno sound reason why the investigation should notbe postponed until after the child has been ad-judged delinquent. Here another point needs tobe stressed. The court cannot be certain that aproblem child will become a delinquent child, andbesides, its own ineptitude may convert a probleminto delinquency.

Moreover, it is urged, the rights of the childand his parents are especially endangered if thecase is handled with extreme informality, becausethen there is no attorney to guard against theabuse of authority, no set of rules to ward offhearsay and gossip, no way of breaking throughthe secrecy of the hearing, and often no appealfrom the court's decision. The child and hisparents have even less protection if the case ishandled unofficially, for in such a procedure veryfew legal checks limit the court's discretion, andredress at law becomes difficult since no officialrecord exists upon which the child can plead hiscase. The situation can be worse if broad defini-tions of delinquency are used, because these leavethe term vague and fuzzy, and under them allchildren tend to be pooled indiscriminately aswards of the state without an opportunity tomarshal evidence against a specific charge. If thesechildren are then processed through unofficialhandling or informal hearings from which many,if not most, of the limitations of due process have

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been removed, they are largely at the court'sdiscretion, which too frequently may be only theexpression of the judge's prejudice. How ironicalit is that this situation is justified in the name ofequity, especially since the court of equity hasalways had its rules and formality for the samereason that rules and formality should be presentin the juvenile court, that is, to check the abuseof power and to protect the rights of the individual.

Finally, it is protested, euphemistic terminology,such as "hearing" instead of "trial," or "dis-position" instead of "sentence," should not beallowed to conceal the fact that the nature of theentire procedure in the juvenile court may belittle different from that of a criminal court. Infact, it may be worse, for it may abandon theprinciples upon which justice is based under theguise of promoting a superior justice. It is under-standable, therefore, why Carr has said, "No manis wise enough or good enough to be trusted witharbitrary power-even the arbitrary power toprejudge the case of some delinquent child in thejuvenile court.""

These, then, are some of the points that havebeen stressed by those who are opposed to broaddefinitions of delinquency, unofficial handling ofcases, prehearing investigations, and extremeinformality of procedure. That they are impressiveones is evidenced by the fact that an increasingnumber of thoughtful writers have demandedgreater protection for the child and his parentsin the juvenile court. And Tappan, in dismayover the seriousness of the situation, has asked,"Who is to save the child from his saviors?" 55

This analysis of the criticisms of the juvenilecourt clearly shows that we are dealing withquestions of emphasis and fine distinctions in aprocess which involves the balancing of the bestinterests of both the individual and society. Italso indicates some of the social, philosophical,legal, and operational problems that confront thejuvenile court. In the consideration of theseproblems, we shall be able to maintain a bettersense of proportion if we remember these facts:(1) Although the general tendency has beentoward the operation of the juvenile court as anadministrative agency with great emphasis onsocial service functions, this type of operation hasnot been achieved to any great extent except inthe comparatively few highly-organized, inde-

CARR, DELINQUENCY CONTROL 240 (1950).1- TAPPAN, op. cit. supra note 52, at 208.

pendent courts in our large cities; but, it must beadded, these courts have been exerting a dis-proportionate influence in the establishment ofstandards and goals in the juvenile court move-ment. (2) Many courts, instead of taking actionthemselves, are already referring a large numberof cases to schools and welfare agencies. (3) Manycourts that have few of the essential characteristicsof the juvenile court sre nevertheless effectivelyhandling cases because of the wisdom of thejudge and the support of interested citizens.(4) Many courts, regardless of what can be donein their behalf, will remain "substandard courts"even when measured by the most moderatecriteria-a fact which becomes increasinglyapparent since these courts have shown littleimprovement despite the unprecedented pros-perity of this country. (5) Many communitieswill have to continue to send their neglect anddependency cases and some of their truancycases to the juvenile court simply because theydo not now have, and may never have, any otheragency able to assume this responsibility. (6) Themajority of the alleged delinquents appearing inthe juvenile court do not contest the allegationsbrought against them and are actually delinquent,although, of course, this does not mean that thesechildren are not entitled to all necessary legalprotection.

Since the juvenile court in the United States isa functioning part of an increasingly complexculture, it must share in all the social problems,including delinquency, that this type of societytends to produce. To the extent that the juvenilecourt operates effectively to rehabilitate juvenileoffenders and to deter others from becomingdelinquent, it functions as an agency of preventionand contributes somewhat to social reorganization.But obviously it can remove only some of theconditions that are causing the delinquency withwhich it is dealing, and it has virtually no controlover industrialization, urbanization, and othersuch powerful forces that are transforming anddisorganizing American society-including thejuvenile court itself-and piling up social problemsfaster than we can handle them.

Although there has been considerable debateabout how the juvenile courts can improve theirstaffs, lower their case loads, and reduce theirother operational problems, most students of thecourt agree that certain changes can be madenow to accomplish these objectives. Many com-

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munities can and should spend more money ontheir courts, and others should use their presentexpenditures more effectively. Many courts shouldhave judges who are better trained in both thelaw and the social sciences, larger jurisdictionalareas, and a stronger position in their state'sjudicial system.56 All courts should closely co-ordinate their operations with those of welfare andlaw-enforcement agencies. And everywhere thepublic should be told more about the court andencouraged to support its work.

It is recognized, of course, that all the problems,of the court are interrelated and interacting andthat many of them are beyond its control. How-ever, there are major problems of a philosophicaland legal nature with which the court can dealdirectly and which are contributing materially toits operational difficulties. The juvenile court, likeall courts, must try to balance the interests of theindividual and society in the adjudication of itscases. In the United States social relationships arebeing torn apart by conflicts, and agencies ofsocial control subverted by divisive influences.The ensuing confusion is blurring the sense ofright and wrong, diluting basic loyalties, en-dangering many cherished rights, and sweepingaway duties and responsibilities essential for thesecurity of the community. The juvenile courtcan help to reduce this confusion if its philo-sophical and legal foundations are strengthened.The proposals advanced below are designed to dothis by casting the court in a more realistic role,protecting the rights and clarifying the duties ofthose coming before it, and enabling it to effecta better balance between the rights of the childand his parents and the security of the community.

PROPOSALS REGARDING THE COURT's PHILOSOPHYAND LEGAL BASIS

Philosophy of the Court. The roots of most of thecontroversy over the juvenile court are to befound in the dual role that it plays in attemptingto function both as a court of law and as a socialservice agency. In fact, many writers on thesubject believe that the basic problem confronting

56 The way in which the position of the juvenile courtin the state's judicial system is to be strengthened willbe affected by the surrounding social and political con-ditions. According to the Standard Juvenile Court Act,if the court is not part of a state system of juvenilecourts, it should be set up within the existing judicialstructure as a separate division at the level of the high-est court of general trial jurisdiction. SussmAx, op. cit.supra note 4, at vii. See also Rubin, State JuvenileCourt: A New Standard, 30 Focus 103 (July, 1951).

the court involves a decision as to which of itstwo functions, the legal or the social service, is topredominate5

The juvenile court was established as a court,albeit a special one, and in structure, function, andprocedure it remains essentially a court.5" There-fore efforts should be made to strengthen itstrue, or judicial, nature and to retain and developonly that part of its social service function thatis necessary for the administration of individual-ized justice.

As a court, even in the administration of thistype of justice, it must not only express the valuesof the society in which it functions but also rein-force these values. Dean Pound, a friend of thejuvenile court, clearly recognized this when hesaid:

"If we work out a system of making penaltreatment fit the crime, we risk losing sight ofthe individual delinquent in pursuit of system.If we look only at the individual delinquent,we risk losing system in pursuit of individualtreatment and lose objectivity which is de-manded when we are constraining the indi-vidual by the force of politically organizedsociety. It comes down to the reconciling of thegeneral security with the individual life, whichas I have said, is a fundamental problem of thewhole legal order."wIn other words, no court, not even the juvenile

court, can be just a therapeutic agency. It is, andmust be, a moral agency as well. And when achild is adjudicated a delinquent by the court,he is, and of necessity must be, stigmatized as aviolator of the moral values of his society. This iswhat the people want and expect of any agencysuch as a court which is established to protectand strengthen their values. In fact, the courtmust act in this way if it is to promote the re-habilitation of the child. If it did otherwise, itwould flaunt the very values to which the childmust learn to adjust and for which he mustdevelop a loyalty. This is not to ignore the fact

-7 See for example, Baker, The Functions of the Ju-venile Court, 24 Case and Com. 449 (Nov. 1917); Long,The Juvenile Court and Community Resources, YEAR-BooK, 1940, 24 (Nat'l Prob. Ass'n, 1940); Eastman &Cousins, Juvenile Court and Welfare Agency: TheirDivision of Function, 38 A.B.A.J. 575-77, 623 (1952);Nunberg, op. cit. supra note 52, at 500.

58 Both legal scholars and social welfare authoritieshave recognized this fact. See, for example, Pound, op.cit. supra note 3, at 5; Nutt, op. cit. supra note 47, at212.59 Pound, op. cit. supra note 4, at 15.

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that values change and that considerable con-fusion regarding moral standards exists in theUnited States. The point is that the court cannotavoid its responsibility as a moral agency. Itimust do what it can to reduce this confusion. Itmust devote itself to the interests of the delinquentand respect his rights, but it must also take itsstand with the community and insist that helearn to discharge his duties and assume hisresponsibilities as a member of society, thusgiving encouragement and support to lawabidingcitizens and helping to maintain the public senseof justice. The way in which the court does thiswill, of course, depend upon the facts of the caseas they are revealed and evaluated in the processof "individualized justice."

Furthermore, in the disposition of the delin-quency case the court forces the child to submitto its authority by placing him on probation, bycommitting him to a correctional institution, orby dealing with him in some other similar way.And by no stretch of the imagination can whatactually happens to the child during this processbe called merely treatment. Thus the action of thecourt involves both community condemnation ofantisocial conduct and the imposition of un-pleasant consequences by political authority-thetwo essential elements of punishment. ®0 It is,therefore, highly unrealistic to say that the courttreats, but does not punish, the child. What itreally does is to emphasize treatment in a cor-rectional process which includes, and of necessitymust include, both treatment and punishment.

This conclusion tends to be supported by severalother facts. There is no systematic science ofhuman behavior, and the concepts and techniquesof treatment are still largely inadequate. More-over, as Dunham has explained, neither the childnor his parents are inclined to view his behavioras symptomatic of a sickness that needs treat-ment, but instead "are committed to the viewthat the court is there for justice and for punishinga person who has done something that is wrong." 6' 1

Besides, the stipulation that the court should actas a parent in protecting and caring for the childdoes not rule out the necessity and desirability ofpunishment. Here again Dean Pound had a clearunderstanding of the nature of the court. "Juvenile

60 Hart, The Aims of the Criminal Law, 23 LAw ANDCONTEM. PROB. 401 (1958).

61 Dunham, The Juvenile Court: Contradictory Orien-tations in Processing Offenders, 23 LAW AN) CONTEMP.PROB. 520 (1958).

probation," he said, "is not a mode of penal treat-ment nor a substitute for punishment. It is a modeof exercising the authority of the state as parenspatriae. It may be conceded that the parent mayhave at times to administer what common lawcalled reasonable correction to the child. No doubtthere is often a corrective element in judicialtreatment of juvenile offenders. But the spirit isthat of the parent rather than that of the ruler." ''

This modification of the philosophy of thejuvenile court is superior to that generally ac-cepted in several important respects. First, itclearly recognizes the necessity of balancing theinterests of the delinquent and the community inthe process of "individualized justice." Second,it provides a practical basis of action which canbe accepted without conflict by both law-in-forcement officers and court personnel. Third, byhonestly admitting that the court must not onlytreat but also punish, this modified philosophydispels the cloud of hypocrisy now enveloping thejuvenile court, and gives it a position in societywhere it can be respected by all law-abidingcitizens. Finally, by revealing the true nature ofthe court, this modified philosophy brings thepossibility of the abuse of power out into the openwhere it can be clearly understood and effectivelycontrolled.Jurisdiction of the Court. The jurisdiction of thejuvenile court should be limited to (1) delinquencycases, and (2) those dependency and neglect casesin which a decision must be made affecting thelegal status of the child, his custody, or the rightsof his parents. All other dependency and neglectcases should be handled by administrative agencieswithout court action, and truancy should bedealt with by the schools. 3 This proposal is madein recognition of the fact that the juvenile courtis essentially a court and not an administrativeagency, and that, therefore, it suffers from in-herent limitations in welfare work. Furthermore,the considerable increase in the number of welfareagencies and public services during the past fewdecades not only makes this transfer of responsi-bilities possible but also leaves the court with agreater capacity to handle the growing volume ofdelinquency cases.

6 Pound, op. cit. supra note 4, at 16.63 This is essentially the proposal made by SOL RuBiN

in his book, CRIVA AND JUVENILE DELINQUENcY 60-63(1958). See also Nutt, op cit. supra note 47, at 213;Hanna, Dependency and Neglect Cases in the JuvenileCourt, YEARBOOK, 1941, 136 (Nat'l Prob. Ass'n, 1941).

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The court should deal with children who can beshown to be delinquent by the application ofspecific, sharply defined criteria, and not withchildren who have problems according to theopinions of teachers, clergymen, and social workers-however sincere these beliefs may be. Juveniledelinquency, therefore, should be defined as theviolation of a state law or city or town ordinanceby a child whose act if committed by an adultwould be a crime. This simple, specific definitioneliminates all the references to such vague con-ditions as "being ungovernable" or "growing upin idleness" which clutter up our statutes ondelinquency and invite loose interpretation andabuse of authority. Thus it will prevent thejuvenile court from moving into areas where otheragencies can render more effective service, and atthe same time it will protect children and theirparents from indiscriminate handling by thecourt without regard for the cause of action in thecase.

The juvenile court should have original andexclusive jurisdiction over all children betweenthe ages of seven and eighteen who are alleged tobe delinquent, except in cases where a child ischarged with a minor traffic offense or where achild of sixteen or over is charged with a seriousfelony, such as murder, armed robbery, or rape.In the cases involving minor traffic offenses, thereis no need of special handling. They can be ad-equately dealt with by a police or traffic court,and thus the burden on the juvenile court can bereduced. 64 In the cases where children sixteen orover are charged with serious felonies the criminalcourt should have original jurisdiction but withauthority to transfer such cases to the juvenilecourt if in the opinion of the judge this would bein the best interests of both the child and thecommunity. The criminal court should have theauthority to act first in these cases, because it,more than the juvenile court, is held responsiblefor the security of society and is organized andadministered esp"cially for this purpose. AsLudwig has emphasized, "Making treatment ofall criminal behavior of young offenders, regardlessof its seriousness or triviality, depend solely uponthe individual need of the offender for rehabilita-tion may well lead our impressionable youngcommunity to conclude that fracturing someone'sskull is no more immoral than fracturing his

64 See STANDARDS FOR SPECIALIZED CouRTs DEALING

WITH CHILDREN, op. cit. supra note 24, at 29, 30.

bedroom window."65 This point is particularlyimportant since a large and increasing percentageof serious crimes are being committed by youngpeople. Thus the handling of a large percentage ofthese young offenders in the juvenile court-acourt Which is not primarily concerned with thepublic sense of justice and security-will make thecriminal law increasingly inoperative and causeadditional confusion regarding our code of moralityand the importance of vigorous law enforcement.This in turn may contribute to the growth ofindifference and cynicism regarding the duties andresponsibilities of citizenship and to an alreadyalarming trend toward the centralization of powerin the hands of a few who, under the guise ofscience and treatment, often seek to impose theirown values upon an increasingly disorganizedpeople. To make matters worse, what is hailed ashumanitarianism is frequently just public in-difference regarding the way in which delinquentsand criminals are handled.

The case of an adult charged with an offenseagainst a child should be handled not in thejuvenile court but in the criminal court. This willplace these cases in a court better designed toassure protection of all fundamental rights in acriminal proceedingO and will help the public tounderstand that the juvenile court is a specialcourt for children and not in any sense of theword a criminal court.

Procedure of the Court. Through its intake pro-cedure the juvenile court should carefully screenall cases brought to its attention so as to eliminatethose that do not require the attention of thecourt or any other agency and to insure thereferral of as many other cases as possible toagencies that are better equipped than the courtto provide curative and preventive treatment.The cases that are accepted by the court shouldreceive official handling. If a case is not in need ofofficial handling, it should not be handled by thecourt at all, but should be referred to some otheragency. Too often unofficial handling is merelythe haphazard, ineffective disposition of cases byunderstaffed, overloaded courts, which is justifiedunder the guise of avoiding the "delinquencyta g . ,,3 7

6 5 LUDWiG, op. cit. supra note 20, at 311.66 Id. at 151.67 Tappan, Unofficial Delinquency, 29 NEB. L. REv.

547 (1950); Herman, op. cit. supra note 52, at 596;SussmxAN, op. cit. supra note 4, at 29, 30; RunrN, op.cit. supra note 63, at 66-68; STANDARDS FOR SPECIAL-

1961]

ROBERT G. CALDWELL '

The court should establish the fact of delin-quency in a case before an investigation of thecase is made. Prehearing investigations are notonly an encroachment upon the rights of the childwho has not yet been proved delinquent, but arecostly in time, energy, and money in the cases ofthose who are discharged as not delinquent.

The procedure during the hearing should beinformal but based upon sufficient rules to insurejustice and consistency. The child and his parentsshould be fully informed regarding their legalrights. These should include the right to be repre-sented by counsel, to have a clear explanation ofthe allegations against the child, to cross-examinehostile witnesses, to summon witnesses in thechild's defense, to have protection against ir-relevant and hearsay testimony and compulsoryself-incrimination, to have a hearing before a juryif this is desired, to have proof of delinquency byat least a preponderance of convincing evidence,and to have access to a higher court for the purposeof an appeal. In addition, every juvenile beforethe court should be given the opportunity to havea public hearing if he so desires, and if he prefersa private one, members of the press should beadmitted to the hearing but should not be per-nitted to publish the name of the child or anyidentifying data regarding him without thepermission of the court. Their mere presence,however, should exert a wholesome and restraininginfluence on the court's operations. 8

Disposition of Cases. The disposition of the caseshould be made by the judge after a study of theinvestigation report and consultation with theprobation officer and other specialists who haveworked on the case. However, simply because thejudge must turn to specialists for assistance in hisdisposition of the case does not mean that itmight be better to have the disposition madeentirely by a panel bf "experts." In the first placethis incorrectly suggests that there is a type ofknowledge that the judge does not have, cannotunderstand, and can never acquire. This not onlygrossly exaggerates the amount of knowledge wenow have regarding human behavior but alsogreatly underestimates the intelligence and skillof the majority of our judges. If a particular judge

IZED CoURTs DEALING WITH CHILDREN, Op. Cit. supranote 24, at 43-45.

68 Tappan, Treatment without Trial, 24 Social Forces308 (March 1946); Cappello, Due Process in the Ju-ienile Court, 2 CATHOLIc U. L. REv. 90 (1952); Geis,Publicity and Juvenile Court Proceedings, 30 RocKY MT.L. RE v. 101 (1958).

is so incompetent or stubborn that he cannot, orwill not, benefit by having the assistance ofspecialists, then the solution lies in his removalfrom office, not in unnecessarily complicating themachinery of the court by the creation of a panelof "experts." And if the judge is so overworkedthat he does not have time to analyze carefullythe facts contained in the investigation report andto consult with specialists about the variousaspects of the case, then the answer is to be foundin the appointment of more judges. There is noshort cut or cheap way to "individualized justice,"and the mere existence of a juvenile court doesnot insure its achievement.

Furthermore, the facts of adjudication anddisposition cannot be examined as if they existedapart from each other. These facts exist in thelife of a single child who must be seen in hisentirety-developing from what he was to whathe will be. They must be assembled creatively inthe mind of one person who has the authority tobalance the interests of both the individual andthe community and who is held responsible bythe community for this function. The facts of acase can be seen in a variety of ways, dependingupon the relation of the examiner to the facts,and the mind is easily misled into seeing only oneside of this picture. The judge who decides thata child is a delinquent should make this decisionto intervene in the child's life not only in fullknowledge of what will happen to the child as heis subjected to the available social services butalso in deep awareness of being held responsiblefor the entire procedure. Only in such a process ofsober deliberation can the knowledge of the factsbe creatively transformed into a wise decision.The division of authority among the members of apanel fragmentizes the facts of the case anddilutes the sense of responsibility regarding theinterests of the child and his relationship to thecommunity.6

These proposals are not advanced with anydesire to convert the juvenile court into a criminalcourt but rather with full recognition of both itsgreat potentialities and its inherent limitations.The juvenile court must be seen as a court-notas an administrative agency, but as a court-designed to protect the child from the traumaticexperiences of a criminal trial and to provide more

69 KAaN, op. cit. supra note 35, at 277; Hall, TheYouth Correction Authority Act, Progress or Menace? 28A.B.A.J. 317 (1942); FRANK, COURTS O& TRIAL ch. 4(1949).

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flexible machinery for balancing the interests ofthe child and the community in the light of themost recent knowledge regarding human behavior.It is not, however, especially equipped to dowelfare work, and so wherever possible it shouldbe divested of jurisdiction over cases in which thechild is simply in need of aid. On the other hand,it is a court, and its action does necessarily stig-matize the child. Therefore, its jurisdiction andprocedure should be governed by simple, specificrules so that while the child is receiving guidanceand protection, his rights and the security of thecommunity are not neglected.

The foregoing proposals have sought to stripaway those excrescenses that have interferedwith the expression of the true nature of thejuvenile court, but they have left it with all thecharacteristics which are essential to its func-tioning and growth. Delinquency as a statusdifferent from that of crime, judges carefullyselected on the basis of both their legal and socialscience training and knowledge, separate hearingsas informal and private as are consistent with theprotection of rights, availability of resources, suchas medical, psychological, and psychiatric services,that can be used to make the investigation ofcases more effective, regular probation service by

an adequate number of well-trained officers,separate detention of children, special and con-fidential court and probation records-all theseand more remain intact and are given a deepermeaning by a more realistic philosophy.

It is recognized that not all these proposals canimmediately be put into effect everywhere. It isbelieved, however, that they do represent desirablegoals toward which all juvenile courts should bedirected so that they will become more effectiveagencies of social control.

But, as Dean Pound wisely counseled, "the lawis not equal to the whole task of social control.Delinquency presents a problem far too complexto be dealt with by any single method. Hence inthis field cooperation is peculiarly called for and iscalled for in a very wide field. If a socializedcriminal justice is to achieve all that it may, wemust be thinking about more than cooperation ofjudge and probation officer and social worker.These must cooperate, or at least be prepared tocooperate with the community organizer, thesocial engineer, the progressive educator, thesocial coordinator, the health officer, the clergy-man, and the public-spirited promoter of legisla-tion."70

-0 Pound, op. cit. supra note 4, at 13, 14.

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