Sarah Grosse Perdekamp
The first juvenile court in the world was established in the United States, in Cook County, Illinois, in 1899.[1] This and other reforms were an outgrowth of the “child savers” movement of the late 19th century.[2] The movement’s legal implications were significant and shifted the focus of the juvenile justice system from punishment to rehabilitation.[3] It was likely the first legal tribunal to merge law with scientific inquiry, drawing on behavioral science and psychology to address the issue of juvenile corrections.[4] This rehabilitative trend was short-lived and in the 1970s and 80s, the United States experienced the most significant surge in youth incarceration rates in its history.[5] From 1971 to 1995, the rate of juvenile incarceration rose by more than 40%.[6]
Juvenile Justice in Europe saw a different trajectory. In Germany, in the early 19th century, criminal law was rooted in the “klassische Strafrechtsschule,” (the “classical school of criminal law”).[7] This school of thought emphasized proportional sentences based on the concept of rational choice, and viewed crimes as moral failings requiring punishment.[8] After the German Aufklärung (Enlightenment), and the late 19th century sociological positivism, the focus shifted toward thinking of crimes as symptoms of societal deficiencies or individual upbringings.[9] The introduction of the Jugendgerichtsgesetz (JGG, or Juvenile Court Act) in 1923, was a compromise between the two schools of thought, although it leaned more towards rehabilitation through educational measures (“Erziehung”).[10] After WWI, Germany saw a surge in youth crime, due to social instability.[11] The JGG responded to this by treating “Heranwachsende” (young adults, ages 18–21) differently than adults.[12] This approach was also a response to the challenges of the “Vaterlosegeneration” (the fatherless generation), a term used to describe the youth growing up without paternal guidance after the unprecedentd loss of life among German men post-WWI.[13] Adhering to the concept of “Erziehung,” these measures recognized the challenges youth faced and aimed to provide guidance rather than mere punishment.[14]
Post-WWII, Europe as a whole saw an even stronger focus on rehabilitation, with increasing attention directed toward reducing recidivism, intervention, and psychological support. In the wake of the war, The Council of Europe was founded in 1949, consisting today of forty-seven member states.[15] It focuses on the protection of human rights and upholding democracy within its member states. The Council of Europe adopted the Guidelines on Child-Friendly Justice in 2010.[16] The guidelines state that “any form of deprivation of liberty of children should be a measure of last resort,” and encourage alternatives such as diversion and mediation whenever possible.[17] In the Case of T. v. The United Kingdom, the European Court of Human Rights (ECHR) ruled against the UK’s criminal prosecution of an eleven-year-old child, finding the proceedings had violated his rights.[18] The court stated it was essential “that a child charged with an offense is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities.”[19] The ECHR focuses on psychiatric evidence and levels of maturity when making decisions as well. In the Case of V. v. The United Kingdom, the court found that “there [was] considerable psychiatric evidence relating to the applicant’s ability to participate in the proceedings.”[20] Although he was represented by attorneys, the court considered that insufficient for the purposes of Article 6 §1 of the European Convention on Human Rights.[21] In Maslov v. Austria, the European Court of Human Rights found that an expulsion order against a sixteen-year-old who had committed multiple criminal offenses violated the European Convention on Human Rights.[22] The Court emphasized that “the decisive feature of the present case is the young age at which the applicant committed the [offenses].”[23]
In contrast to the rehabilitative focus of many Western European countries, juvenile justice policies in the United States have historically leaned toward a punitive and retributive model, particularly from the 1980s onward.[24] This shift was driven by a “tough on crime” era that viewed harsher sentences as a deterrent to crime.[25] The United States is the only United Nations member state that has not ratified the UN Convention on the Rights of the Child (CRC).[26] This is partially due to a lack of political momentum and federalism concerns.[27] Despite not ratifying the CRC, the U.S. has implemented laws and policies that align with many of the convention’s principles.[28] However, the CRC policy recommendations are much less stringent and more universally applicable than those of the ECHR, making them comparatively easier to meet in diverse legal systems.[29]
The United States has only in recent history banned the death penalty for juveniles and overturned mandatory life without-parole sentences for children convicted of homicide.[30] In contrast, Western European countries, both in policy ideals and in practice, have abolished the death penalty for children and adults. In 1983, Protocol No. 6 to the ECHR abolished the death penalty in peacetime for all individuals and the last known execution of a child in Western Europe occurred in the early 19th century in England.[31]
The United States’ punitive system fails to provide sufficient safeguards for juveniles, especially when compared to other Juvenile Court practices of western states. To address this issue and modernize its approach to crime, the U.S. should (1) raise the age of juvenile jurisdiction to 21, (2) reinvest in rehabilitation, and (3) implement restorative justice practices. Most importantly, it should enshrine these protections into law, as the U.S. legal system is slow to change in regard to new social norms and slow to integrate developmental science into legal frameworks.
[1] Brad Taylor, Return to Rehabilitation: Illinois’ Evolving Juvenile Sentencing Practices in Light of Miller v. Alabama, 43 S. Ill. U. L.J. 403, 404 (2019).
[2] Anthony Platt, The Rise of the Child-Saving Movement: A Study in Social Policy and Correctional Reform, 381 Annals Am. Acad. Pol. & Soc. Sci. 21, 21–38 (Jan. 1969) https://doi.org/10.1177/000271626938100105.
[3] Am. Bar Ass’n, Div. Puplic Educ., Dialogue on Youth and Justice, at 5 (2007) americanbar.org/content/dam/aba/administrative/public_education/resources/DYJfull.pdf.
[4] Patrick N. McMillin, From Pioneer to Punisher: America’s Quest to Find Its Juvenile Justice Identity, 51 Hous. L. Rev. 1485, 1489 (2014) (describing the creation of the first American juvenile court system, in Illinois).
[5] Franklin E. Zimring, American Juvenile Justice 45 (2005)
[6] Id. at 46.
[7] Ralph Grunewald, Die De-Individualisierung 93 (Dec. 2002) (Ph.D. dissertation, University of Mainz) (on file with author).
[8] Id.
[9] Id. at 40.
[10] Wissenschaftliche Dienste, Deutscher Bundestag [“Scientific Services, German Bundestag”], Zum Erziehungsgedanken im Jugendstrafrecht [“On the Educational Concept in Juvenile Criminal Law”] (2008) https://www.bundestag.de/resource/blob/408078/b40ab56035eded6af31a10cf73ddef48/wd-7-015-08-pdf-data.pdf [hereinafter Wissenschaftliche Dienste].
[11] Interview with Ralph Grunewald, Ctr. for L., Soc’y, & Just. Dir., Assoc. Professor, University of Wisconsin-Madison, Ph.D. (Oct. 10, 2024).
[12] Wiessenschaftliche Dienste, supra note 10, at 6.
[13] Grunewald, supra note 11.
[14] Id.
[15] What Is the Council of Europe?, BBC News (Feb. 5, 2015), https://www.bbc.com/news/world-europe-17741526.
[16] Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice (Nov. 17, 2010), https://rm.coe.int/16804b2cf3.
[17] Id. at 24.
[18] T. v. United Kingdom, App No. 24724/94 (Dec. 16, 1999), https://hudoc.echr.coe.int/fre?i=001-58593.
[19] Id. ¶ 84.
[20] V. v. United Kingdom, App No. 24888/94, ¶ 89 (Dec. 16, 1999), https://hudoc.echr.coe.int/eng?i=001-58594.
[21] Id. ¶ 90.
[22] Maslov v. Austria, App No. 1638/03 (June 23, 2008), https://hudoc.echr.coe.int/fre?i=001-87156.
[23] Id. ¶ 81.
[24] Taylor, supra note 1, at 404.
[25] Zimring, supra note 5, at 46.
[26] Frequently Asked Questions on the Convention on the Rights of the Child, UNICEF, https://www.unicef.org/child-rights-convention/frequently-asked-questions (last visited Nov. 25, 2024).
[27] Congressional Research Service, The United Nations Convention on the Rights of the Child: A Guide for U.S. Policymakers, CRS Rep. No. R40484, 7 (2021), https://crsreports.congress.gov/product/pdf/R/R40484/25.
[28] See generally, Elizabeth Bartholet, Ratification by the United States of the Convention on the Rights of the Child: The Pros and Cons from a Child’s Rights Perspective, in The Child as Citizen, Jan. 2011, at 16–20.
[29] Id.
[30] See Roper v. Simmons, 543 U.S. 551 (2005); see also Miller v. Alabama, 567 U.S. 460 (2012).
[31] Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, 28.IV.1983.