16 Schetky 11-03.qxd

Prior to the creation of the first juvenile court, most children who committed crimes in the colonial United States were prosecuted as adults in the tradition of English law. Common law of that period held that children under the age of 7 were presumed incapable of committing a crime (the defense of “infancy”). Children between the ages of 7 and 14 were presumed responsible for their acts, but the court had to show beyond a reasonable doubt that they could distinguish between “good and evil.” Beyond this age, they were treated as adults.1 The first juvenile court in the United States was established in Chicago in 1899; other states soon followed. The early juvenile courts stressed benevolence, decriminalization, and diversion but did not provide youths with any special rights. The court aspired to determine the causes of delinquency and find treatment that might get a wayward youth back on track. The language of the juvenile court reflected a softer stance than that taken with adults (e.g., using a concept of “adjudication” for accused juvenile offenders rather than “trial”). During the 20th century, several landmark cases afforded new rights to juveniles facing criminal proceedings. Kent v. US (1966) granted juveniles the right to a hearing before being tried as adults (a “waiver” hearing).2 In re Gault (1967) gave juveniles facing criminal charges due process rights similar to those of an adult but stopped short of permitting the right to a jury trial, transcript, or appellate review.3 Another significant case was In re Winship (1970), which raised the burden of proof needed to convict from a preponderance of the evidence (just over 50% certainty) to the adult standard of beyond reasonable doubt.4 A rise in youth violence in the 1980s, disillusionment with the ability of the juvenile court to deal with violent juvenile offenders, and a get-tough-on-crime social atmosphere led to an increase in the number of juveniles being “waived” or bound over to adult courts— which are able to hand out harsher and longer sentences than juvenile courts. Although juveniles continue to commit a disproportionate number of property and violent crimes, the arrest rate for juvenile offenders for most crimes declined measurably between 1994 (a peak year) and 2000.5 However, the number of waivers for trial as an adult continues to rise. The number of juveniles in adult jails also increased by 366% between 1983 and 1998, and the number admitted to state prisons doubled between 1985 and 19976 (note that these numbers are not adjusted for population growth).