Journal of Criminal Law and Criminology

Volume 48 | Issue 5 Article 3

1958

Problems in the Structure of the Juvenile CourtHenry Nunberg

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Recommended CitationHenry Nunberg, Problems in the Structure of the Juvenile Court, 48 J. Crim. L. Criminology & Police Sci. 500 (1957-1958)

CLINARD AND WADE

present indicating the type of criminal behaviorcharacterized by Reckless as "behavior of themoment" in response to certain situations. Muchteen-age vandalism appears to be of this kind; itis extemporaneous behavior, adventitious andfortuitous in character, an outgrowth of the rest-less and exhuberant nature of the adolescent boy.

In the evening, between five or six, we was out toCenter (this center had been burned)

messin' around. We was gonna play some ball. It wasgettin' too dark for that, so one of us suggested to goin; so we went in .... Climbed up on the rest roomroof. See, it used to be a school, that's where the exitsoutside from the restrooms were. We climbed up onthere and went in through the window.... Well,first we went up and we thought we'd see what the TeenTown room looked like. Went up there, it wasn'tbothered or burnt too much-floor was a little weak,dirty. Then we come back downstairs-we was gonnago in the art room but we couldn't get in there, thefloor, it was burnt through. There was, oh, about aneighth of an inch of wood left. So we couldn't get inthere. Uh-we just went messin' around. Startedthrowin' rocks .... From what we heard they wasgonna tear the building down, build one the full lengthof the lot down there .... About in there an hour; justwent around-throw one or two (rocks) ... prettysoon we were going like mad .... While we were doingit we didn't think nothing about doing it because, likeI say, what we heard they was going to tear the wholebuilding down and I didn't think they would savethem (windows)-big percentage of them were crackedand discolored, anyway .... What we was doing therewould be about three of us outside and three of us in-side and we would have wars, throwing rocks back andforth at each other .... I guess anybody likes to get introuble once in a while ... not actually go out to lookfor trouble, but I mean at the time we thought it wasfun until the police came; that was all.

On the other hand, the differential social expec-tations as to the roles of boys and girls are impor-tant in the inhibition of destructive behavior bygirls. Since American culture does not place thesame inhibitions on the boy's outward expressionof his feelings, positive or negative, as it does onthat of girls, the male. youth, as one author hassuggested, often appears to feel it essential to beself-directive in order to be considered masculineand acceptable to his peers.34 Participation invandalism is one way of meeting these needs forautonomy and peer group acceptance.

3RECKLESS, op. cit., p. 73.34 See AILEEN SCHOEPPE, Sex Differences in Adoles-

cent Socialization, JouR. or Soc. PSYCHOL., 38 (No-vember 1953), 175-185.

Fundamentally related is the frustration felt bythe adolescent in a culture in which his role andstatus lack a well-defined normative structure.Moreover, there is little consensus on values andno consistency in adult behavior which mightserve as guideposts. This absence of dominant andclearly defined norms, coupled with the factor ofpeer group loyalty with its attendant norms andvalues, results in conflict between the adolescentand adult authority figures, usually his parents andteachers. The consequence is behavior often termeddelinquent by the adult world, while the adolescentdefines it in terms of conformity to peer groupexpectations .

5

This difference in the definition of behavior istrue of vandalism. Whereas the adult world thinksof the teen-age vandal as a delinquent, the vandalmay often have an entirely different self-concep-tion. His self image is frequently that of aprankster:

We did all kinds of dirty tricks for fun. We'd see asign, "Please keep the street clean," but we'd tear itdown and say, "We don't feel like keeping it clean."One day we put a can of glue in the engine of a man'scar. We would always tear things down. That wouldmake us laugh and feel good, to have so many jokes.31

One time.., four or five of us boys went to an apart-ment just being built, took a whole wall of cementdown. We took a chisel and knocked down hundreds ofcinder blocks, just mischievous. We went to old houses,broke windows ..... In one house we found a bigvictrola. We threw it down the stairs, we pushed downthe bannister, we broke the chandelier. We didn't stealanything, just broke things .... I had to do it so theywouldn't call me chicken.H7

The fact that often nothing is stolen during suchvandalism tends to re-enforce the vandal's concep-tion of himself as merely a prankster and not adelinquent. Some writers have pointed this out asa distinguishing characteristic of the vandal whencompared with other property offenders, assumingthat since nothing is taken vandalism has a non-utilitarian function. However, these acts often dohave a real meaning and utility for the participants,even though the reasons for participation are not

35 For a criticism of the view that adolescent cultureis in conflict with its adult counterpart, see FREDERICKELaIN AND WrLnum A. WESTLEY, The Myth of Adoles-cent Culture, AxiRn. SOCIOL. REv., 20 (December 1955),680-684.

3 6 FREDERICK M. THRASHER, THE GANG (2nd Edi-

tion; Chicago: University of Chicago Press, 1936),pp.94f.

BENjAMIN FINE, 1,000,000 DELINQUENTS (NewYork: World Publishing Company, 1955), pp. 36f.

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DELINEATION OF VANDALISM

expressed. Property destruction appears to func-tion for the adolescent as a protest against hisill-defined role and ambiguous status in the socialstructure. Although role frustration is basic to thisprotest, the nature of the frustration differs as tothe position of the vandal in the social structureas implied in this statement by a sixteen year olddelinquent.

Well, he accused us of stealing some stuff out of hisjoint. He didn't come right out and say it was us, butthe way he talked he made it sound like it-par-ticularly us .... Yeah, we was kidding him about anold rifle he had in there, about ninety years old, and hewanted fifteen dollars for it and the stock on it was allcracked up and everything. And we kept kidding hismother-she's in there (the store) with him-and wekept kidding her, and old Gay (the store owner),himself, come over there and started raising the devil,blowing off steam and everything. We didn't like it toowell. We left and came back later .... I told him (hiscompanion) let's go down and break those windows.He said OK and we went down there and picked upsome rocks along the way. We got down there andstood in front of the place till there weren't any carsvery close to it and we threw the rocks and ran .... Iguess you gotta get into something once in a while oryou don't live right out there. It didn't seem like thenthat it would amount to this much.

SUMARY

It has been pointed out that more concentrationof research on types of delinquency is needed.Rather than grouping all kinds of delinquenciesand delinquents into a heterogeneous category

designated as "juvenile delinquents" and com-paring this with an equally omnibus one labeled"juvenile non-delinquents," efforts should bedirected toward a fuller understanding of the actitself and the kind of juvenile who predominantlycommits this type of offense. The findings of suchtypological comparisons could conceivably be ofhelp in the formulation of more specific theoriesof delinquent behavior and social control.

Vandalism has certain dimensions, specificallythe community's definition of the act and its toler-ance limits when property destruction occurs. Alsoof importance is the social setting in which theoffense takes place. Whether or not there is a well-defined field in which vandalism is a permissibleact has much to do with its occurrence and direc-tion. Not only is it an important delinquency,judging from community reaction and financialcost, but vandalism is also illustrative of what hasbeen called "behavior of the moment" in responseto certain situations.

Research on vandalism has been largely ex-plorative and descriptive without a unifying frameof reference and testable hypotheses. Conse-quently, it is proposed that property destructionbe examined within a sociological framework ofadolescent behavior. From this perspective van-dalism is seen as one expression of the frustrationfelt by teen-age boys in their attempts to achieveautonomy and a satisfying self-conception in aculture where the adolescent's role and status lacka normative structure.

19581

PROBLEMS IN THE STRUCTURE OF THE JUVENILE COURT

HENRY NUNBERG

The author received his degree in law from the Harvard Law School in 1957. The following articlewas written for the Seminar on "Problems of Juvenile Delinquency" which was given by ProfessorSheldon Glueck.-EDITOR.

INTRODUCTION

Almost sixty years have passed since the firstjuvenile court was founded in the United States.During that time, the court has become anintegral part of the law-enforcement system in theUnited States. It exists in many forms: as a juvenilesession of a district court, as a separate courtsystem, or as part of a Domestic Relations orFamily Court scheme. The jurisdictional limitsand organizational lines of these courts vary fromstate to state, and even within a single state. Butin the course of its development, the juvenilecourt has in many communities wandered farafield from the traditional areas in which a court oflaw functions. The juvenile court is no longersimply a court of law which dispenses impartialand blind justice; rather it has become for manycommunities the central agency to handle all theproblems created by juvenile crime and delin-quency. Thus, the court takes on a dual role: itattempts to function both as a court of law and asa social service agency. The basic problem facingthe juvenile court today is that of clarifying itsrole in society, in order to determine which role isto predominate, and in which of the two capacitiesit will function. It is the opinion of the author thatif the juvenile court accepts the role of socialservice agency, it cannot retain its vitality as acourt of law. It is felt that the court, in order topreserve important social values, must retain itsessentially juridical nature.

PART A-I

Much has been written about the multiplicationof functions in the juvenile court. Many writershave simply assumed that the court is judicial innature, and have discussed its functions on thisbasis.' Some, however, have maintained that thejuvenile court is not a court at all, but a kind of

1 E.g., GusTAv L. ScHRAmm, Philosophy of the JuvenileCourt, 261 TE ANNALS Or TE AM. Ac.D. OF POL.AND Soc. Sci. 101 (1949).

hospital for children afflicted with the disease ofdelinquency.2 One writer has suggested that thename of the juvenile court be changed, so that theword "court" does not appear in its title.3 Otherwriters have discussed at length the question ofwhether the juvenile court is actually a judicialbody, or whether it is, rather, an administrativeagency masquerading as a court.4

These conflicting views result from incon-sistencies in the theories that gave birth to thejuvenile court. They were not, however, as ap-parent at its inception as they became later on.

Holmes has written that the criminal law sprangfrom the necessity of finding a social means tosatisfy the demands for retribution and vengeancecreated by the perpetration of anti-social acts.5

The juvenile court movement seems to have hadits roots in the desire to remove such elements fromthe law as it related to the treatment of childrenwho committed crimes. It seemed unfair to exposechildish offenders to the humiliation, censure anddegradation accompanying criminal trial andpunishment. Children were to be protected fromthe vengeance of society.

The movement was started and advocated in manyplaces not so much from any legal theory, scientificmotive, or any considerations of democracy or socialeconomy, as from humanitarian considerations basedon sentiment, sympathy, morality or humanity.6

2 e.g., PAUL W. ALEXANDER, Confessions of a VeryJuvenile Judge, in Probation and Parole Progress,N.P.P.A. YEARBOOK, 1941; for an extended use of thehospital analogy, see WrLLIAms G. LONG, The Relationof the Juvenile Court to Other Agencies, 35 J. CRrm. L.& CRnIN. 55 (1944).

3 GLENN R. WINTERS, Modern Court Services forYouths and Juveniles, 35 J. Am. JuD. Soc. 112 (1949).

4 FREDERICK W. KILLIAN, The Juvenile Court As AnInstitution, 261 TIE ANNALS OF THE Am. AcAD. orPOL. AND SoC. ScI. 89 (1949); PAUL W. TAPPAN,JuvENiLE DELINQUENCY (New York, 1949), Part IH.

10. W. HoL~ms, JR., THE CoMMoN LAW (Boston,1883), Lectures I & II.

6 H. H. Lou, JUVENILE COURTS IN THE UNITEDSTATES (Chapel Hill, 1927), p. 22.

THE JUVENILE COURT

The first objective was to soften the conditions ofpunishment under which children convicted ofcrimes suffered. Only gradually did the idea evolvethat stigmatization of children as criminals wasitself an injustice; the final step was to remove thetreatment of anti-social children from the criminalcourts altogether. The history of the juvenilecourt movement has been recorded elsewhere.7

For present purposes, it is sufficient to note that atthe time the first juvenile court in the UnitedStates was created in Chicago, the study ofdynamic psychology had not yet taken on majorproportions. The necessity for utilizing theknowledge of the expert in dealing with behaviorproblems had not yet been recognized. To thosepeople concerned with the juvenile court, it seemedthat love of-children and common sense were theonly prerequisites necessary for the successfultreatment of most juvenile delinquents. A sensi-tive man sitting on the bench as judge, togetherwith a probation officer who had a good store ofcommon sense, were thought sufficient to treatmost delinquents brought before the court. Thosechildren who did not respond to this treatmentcould be handled in the institutions run by statedepartments of welfare or private agencies,staffed, ideally, with educators and disciplinarians.Factors such as environment and physical healthwere recognized as the causes of delinquency. Asubtler theory of causation, gained through adeeper understanding of human behavior andsocial mechanisms, was as yet undeveloped. In thenext few years, however, there was an awakeningof the social sciences and, especially in psychology,great advances were made toward a fuller under-standing of the motivations of human behavior.

The growth of the new sciences began a processof reexamination into the purposes and methods ofthat part of the laws which attempts to governanti-social behavior. The discovery of the un-conscious and its tremendous influence overhuman behavior brought into question legaltheories of responsibility.8 The juvenile courtmovement was in part the outgrowth of a feelingthat children who in the past had been considered

7 H. 1-. Lou, op. cit. For a sketch of the developmentof ameliorative treatment of young criminals as well asof the juvenile court generally, see TERs ANDREINExANN, THE CHALLENGE Op DELINQUENCY (NewYork, 1950), Chapters II and IX.

8 For a brief account of the development of the lawof responsibility in one area of the criminal law, seeJOHN BIGGS, THE GurTY MIND: PSYCH ATRY AND THELAW op HomcmE (New York, 1955).

criminally responsible for their anti-social behaviorwere not in reality capable of forming the intentnecessary to perform a criminal act.9 By question-ing contemporary theories as to the generalnature of man's responsibility for his actions, thenew concepts gave added impetus to the philosophyof legal non-responsibility of the juvenile offenderfor his conduct. Science, therefore, supplied arationalization for the existence of the juvenilecourt that was lacking in legal precedent. Whetheror not the early chancery practices supposedly atthe root of the juvenile court idea did in fact supplyan adequate justification for the juvenile court andits practices, modem social theories demandedsome form of specialized treatment for children introuble with the law.

Just as the growth of administrative law wasfostered by the needs of a complex and expandingsocial structure, so was the growth of the juvenilecourt 0 In the juvenile court, however, problemsarose that were not as evident, or at least not asacute, in the administrative agencies. As Tappanhas pointed out, "... . the control over the libertyof the defendant and the potential influence on hispersonality through court handling... are greatlyin excess of the powers ordinarily entrusted to theadministrative agency-or to courts of equity.""Having been created as a replacement for thecriminal courts in a certain class of cases, thejuvenile courts retain powers over the fate of theindividuals brought before it more akin to those ofthe criminal court than to the powers of any otherinstitution of the state. 2 At the same time, how-ever, proceedings in juvenile court are held withoutthe paraphernalia of procedures used in criminaltrials to protect the rights of the individual, on thegrounds that use of these forms might be injuriousto a child.

Herein lies the peculiar paradox of juvenile courts:designed to ensure a superior justice through protectionof the child, they have to an excessive extent aban-doned the fundamentals upon which the methods ofpromoting justice are based.13

The "peculiar paradox" arises from the indecisionof those concerned with the juvenile court as towhat its function should be. It arises from thecomplexity of the source of modem thought which

9 TEETERS AD REINEmANN, op. cit., p. 281.10 TAPPAN, op. cit., p. 169.u Ibid., p. 170.12 Ibid.13Ibid.

1958]

HENRI NUNBERG

provides the justification for continued existenceof the juvenile court.

It has yet to be decided whether the juvenilecourt is to be limited to the adjudication anddisposition of cases in which juvenile offendershave broken the law, or whether it is to becomethe central agency in the community for dealingwith the problems of children in society. In writingof the accomplishments of the juvenile court, someauthors proudly point to the variety of com-munity projects undertaken by the court, itsclinic to aid youngsters who have not been broughtbefore the court formally, and its probation officersperforming the tasks of "informal probation."' 4

Even juvenile court judges, who wish to retain thecourt as a judicial body, have been known to ad-vocate making the juvenile court, through its in-take department or otherwise, a kind of "socialservice exchange."1 5

Interwoven with this problem is the question ofhow the disposition and treatment of cases ad-judged delinquent by the court is to be carried out.It is at this point that psychology and caseworkare brought directly on the scene. Here theprinciples governing the juvenile court becomeblurred. It is here that the doubt and indecision asto the nature of the court are most clearly to beseen.' 6 The decision as to disposition, according tostatute, is supposed to be made primarily for thewelfare of the child; yet the decision is made by ajudge, untrained in the principles of child guid-ance.' The child is to be treated, "in so far aspossible," as a child "in need of aid, encouragementand guidance" (emphasis added); yet, in mostcases, the delinquent is placed in the care of a

14 GLENN R. WINTERS, Op. Cit.A conversation with some probation officers and

a psychiatrist participating in the court clinic pro-gram in the Boston area revealed the prevalence ofthe attitude that it is the function of the courtclinic and the probation officers to handle informallyas many as possible of the cases that come to theirattention. One of the probation officers described tothe author how he placed children in foster homes,by contacts with private agencies, in an informalway and without court action. The psychiatriststated to me that it was his aim to give treatment toas many children as possible without sending themthrough a court proceeding. Apparently, the judgeof this particular court sanctioned these practices."5 LIBBY E. SAcnAR, A Judge's View of Juvenile Pro-

bation and Parole, N.P.P.A. YEARBOOK, 1952.I All descriptions of procedure and discussion of the

way in which the juvenile court and related agenciesperform their functions are based upon the systempresently in use in Massachusetts, unless otherwisestated.

17 MAss. ANNo. LAws, c. 119, sec. 53 (1956).

probation officer, who is responsible to the judge.Thus, the judge is ultimately responsible for thetreatment of most delinquent children. The finaldecisions as to the treatment of a delinquent childtherefore remain, as they were before the juvenilecourt was founded, in the hands of a judge. He istrained in the principles of law, to act in thecapacities of protector of the community andguardian of individual rights against the claims ofthe state; he is not a therapist or diagnostician.Neither psychologist nor social caseworker par-ticipates in taking the responsibility for thesedecisions affecting the welfare of the child. Thejudge, it is true, is furnished information by theprobation officer and in some cases by the psy-chologist and the psychiatrist as well; but he is freeto disregard these reports. Responsibility, there-fore, remains with the judge. The therapist andsocial worker, representatives of the new scienceswhich provide the rationale for the existence of thejuvenile court, must still take second place.

The fact that disposition and some forms oftreatment are left in the hands of the judge hasstill further significance. For "in addition to re-straint upon liberty, the methods of treatment andtraining through court action are in fact partiallypunitive." 8 Thus, it is a reasonable hypothesisthat the criminal origins of the juvenile court havenot been entirely forgotten by the community,and that punishment, in and for itself, is still animportant element governing the juvenile court. Itis to be noted that the child himself usually feelsthat he is brought before the court to be punished.19

Moreover, the fact that disposition, and oftentreatment itself, is left in the hands of the judgemay serve to indicate that the punitive element inthe administration of justice is still, in practice, ofequal importance with the therapeutic aims whichfind expression in the language of the statute.20

The fact that the juvenile court does not havejurisdiction over children who commit offensespunishable by death"l and that it may dismiss thecomplaint of delinquency in the case of a childover 14 so that he may be tried in the criminal

8 TA.P,, op. cit., p. 220.'9 HELEN L. WITnER, Social Case Work in the Field

of Juvenile Probation, in PROBATION AND PAROLEPROGRESS, N.P.P.A. YEARBOOK, 1941, p. 161. It is notintended to convey the impression that punishmentcan never have therapeutic value. The only point isthat the aims of the law, in the traditional sense, ininflicting punishment, and those of the therapist, are ofa different nature.

20 MASS. ANo. LAWS, c. 119, sec. 53; 58.(1956).21bid., sec. 52.

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THE JUVENILE COURT

court,n is further evidence that there is still apunitive element in the law governing the juvenilecourt. It is, in one aspect, regarded as the mildestpunishment-inflicting agency of the state; but apunitive institution nevertheless. "Parens patriae"and retributive punishment are still competingwith each other for supremacy in the juvenile court.The paradox in the juvenile court is, then, thattreatment and therapy are, by the very nature ofthe court as a court of law, based upon a judgmentof guilt or innocence; two different categories,that of legal judgment in terms of moral andethical values, and that of therapeutic decision interms of sickness and health, are intermingled toproduce its decision. The change in terminologyfrom that of the criminal court's "guilt" or"innocence" to that of "delinquency" or "non-delinquency" has not altered the fact that thecourt's adjudication of status is a social and moraljudgment rather than a psychological diagnosis;calling the process of determining what to do withthe delinquent after adjudication "disposition"rather than "sentencing" does not altogethereliminate the punitive element.

It would be interesting to discover tle precisereasons why it is so difficult to eliminate thepunitive element from the treatment of personswho have committed anti-social acts.P Perhaps,as Ruth Eissler suggests, it is connected with thecommunity need for a scape-goat on which to ventthe feelings of guilt which accompany the consciousor unconscious anti-social impulses of the membersof society. Ruth Eissler speculates that the rootsof the difficulty may have other factors of equalimportance: she postulates that society really doesnot wish to stamp out delinquent behavior, andhence, it places obstacles in the way of developingan adequate program for its eradication. Thereason for this reluctance, she maintains, is thatdelinquent behavior serves as a vicarious acting-out of the anti-social impulses of the law-abidingportion of the population.u If Eissler and the otherpsychoanalysts who have developed similarhypotheses are correct, it is not difficult to see whythe element of punishment still remains a part ofthe system for dealing with delinquency. This

22 Ibid., sec. 61.For an interesting discussion of this point, see

RunH S. EIssLmR, Scapegoats of Society in SEAIcH-LIGHTS ON DELINQUENCY (New York, 1949), p. 288,following hypotheses developed from her clinical ob-servations of interfamily relations. See also, the workof ADELAImE M. JoHNsov, S. A. SzuREK and others.

21 RUTH S. ExssmFR, op. cit.

paper, then is concerned with the difficulties thatarise in attempting to combine the requirements ofthe social order, both in psychological terms and interms of the requirements of due process of law,with the therapeutic requirements of proper diag-nosis and treatment to effect a cure of juveniledelinquency.

A-II

The "peculiar paradox" of the juvenile court wasrecognized soon after its establishment. The recog-nition took the form of an inquiry into the compe-tence of a judge trained in the law to determine theproper therapy to be applied in the treatment ofthose cases which he had adjudged delinquent. In1917, Judge H. M. Baker wrote:

It has frequently been declared that the purposes of thejuvenile court are to prevent, not to punish; to reform,not to chastise. Theoretically this is true, but prac-tically it has too frequently been forgotten. The truthis that the prevention of criminal tendencies in theyoung... properly rest on other than legal consider-ations.

Judge Baker, moreover, was of the opinion thatjudges were not competent to pass on the "otherthan legal considerations": ". . . I believe that eachman should stick to his trade, and that a masteryof law is about all that can be expected of theaverage individual...,aM

It was thought that the expert judgment neces-sary to determine the form of treatment could beprovided by an adequate probation departmentattached to the'court.H Another suggestion was toprovide an extensive referee system. Refereeswould be appointed on the basis of their expertknowledge of methods of dealing with delinquents.The referees would hear the petitions of delin-quency, make a finding of fact and recommenda-tions for disposition which would he subject to theapproval of the judge.28 Ultimate responsibility fordisposition (and for treatment in the event thatthe child was placed on probation) rested with thejudge alone.

Neither of these solutions considered the possi-bility of altogether relieving the judge of his powerof disposition after adjudication of status. In the

25 HERBERT M. BAKER, The Functions of the Juvenile

Court, 24 CASE & Coe. 449 (1917).26 Ibid.

2 Ibid., p. 451; Mnua" VAN WATERs, The Socializa-tion of Juvenile Court Procedure, 13 J. Cmu. L. &CRnnN. 61 (1922).

2 Mnmi VAN WATERs, Ibid.

1958]

HENRY NUNBERG

late 1930's, however, with the publication of suchworks as the Gluecks' study of the juvenile courtin Boston and its relevation of a discouraginglyhigh percentage of recidivism among delinquentswho came before the Boston court,29 and the studyof the plight of youthful offenders over juvenilecourt age in New York City by Harrison andGrant,30 serious discussion began over the ad-visability of divorcing disposition and treatmentfrom adjudication of status.31

As a direct response to the study by Harrisonand Grant, supra, the American Law Instituteundertook to consider ways in which the process oftreatment determination might be separated fromthe criminal trial of youthful offenders. The out-come of its deliberations was the Model YouthCorrection Authority Act.n The Model Act wasintended for use in the sentencing and treatment ofyouthful offenders who came before the criminalcourt, and not for the disposition of cases before thejuvenile court. In all of the states where it hasbeen adopted, however, the Act has been used atleast in part to dispose of juvenile cases. In noneof these states has the Act been adopted as awhole. 3

3 Massachusetts is one of the states whichhas, with important modifications, adopted theYouth Authority idea; but it has limited the scopeof the Authority (called the Youth Service Board)to the handling of juvenile cases.H

In modifying the Model Act, Massachusetts hasleft a limited discretion as to disposition afterjudgment in the hands of the judge; similarly, ithas retained probation as a function of the court.35

The Massachusetts Act, therefore, bears littleresemblance in its structure to that which was en-visioned by the drafters of the Model Code; it doesnot achieve the "coordination and integration of

29 S. & E, T. GLUEcK, 1000 JUVENILE DELINQUENTS(Cambridge, 1934).

30 LEONARD B. HARRISON AND PRYOR MCNEILLGRANT, YouTa IN THE TOILS (New York, 1938).

3 See THOMSs D. ELIOT, Suppressed Premises Under-lying the Glueck Controversy: Divorce Treatment fromAdjudication! 26 J. Cumi. L. & C imq. 22 (,935).

"ALI YoUrH CORRECTION AUTHORITY AcT: OfficialDraft, June 22, 1940.

3For discussion of the Model Act and its fate in thefive jurisdictions in which it had been adopted by 1951,see BERTRAM M. BECK, FvE STATES: A STUDY OF THEYOUTH AUTHORITY PROGRAM AS PROMULGATED BYTHE ALI (Philadelphia, 1951).

3"MAss. ANNo. LAws, c. 6, secs. 65-69A, c. 120(1955).

39 IVODEI. YOUTH CORRECTION AUTHORITY AcT,Sec. 11; MAss. ANNO. LAWS, C. 119, sec. 58 and sec. 64,as amended by Acts of 1956, c. 731, sec. 2; c. 276 asamended by Acts of 1956, c. 731.

treatment processes" which was a part of theoriginal plan. 6 Nor does it substitute diagnosis andprescription of treatment for judicial disposition.

Perhaps the explanation for the action ofMassachusetts iii thus emasculating the YouthAuthority Act is the reluctance of the legislature toabandon totally the punitive aspect of the law inrelation to delinquency. But another element ofimportance must be considered as well. The ModelAct was intended to function after trial in acriminal court. In the criminal courts, the jurytrial and formal rules of evidence and procedureare still maintained. The question of guilt orinnocence is often in dispute, and guilt must beproved by the state beyond a reasonable doubt.Therefore, even if the power of disposition aftertrial is taken from the court, it still has importantpowers and duties.

In the juvenile court, on the other hand,- formalprocedures are not strictly followed. Moreover,most of the defendants readily admit that theyhave committed the acts with which they havebeen charged.N7 Therefore, if the power of dis-position were taken from the juvenile court judge,he would be left with merely formal functions inmost cases in which a delinquency was charged. Itmay be that the legislature felt it inadvisable torestrict the juvenile court to such an extent.30

Closely connected with the question of whetherthe judge should retain discretion as to dispositionis the problem posed by keeping probation as anarm of the court. In the present Massachusettssystem, probation is the mainstay of the juvenilecourt. It is through the probation department ofthe court that the judge learns about the child'sbackground. The probation officer recommends tothe judge the form that treatment should take.Moreover, in most cases, the probation officer wiladminister the treatment as well; far more juvenilecases are disposed of through probation than inany other way, except for dismissal and filing.' 9

" BECK, op. cit., p. 4.7This fact was brought out by Professor Glueck in

a Seminar on Problems of Juvenile Delinquency atHarvard Law School, Fall Term, 1956.

"8 Throughout this paper, the discussion of the ju-venile court relates only to its delinquency jurisdiction.Its neglect and dependency jurisdiction is not discussed.As will appear later in this paper, the writer does notfeel, in spite of the opinion of many social workers andthe position taken in the Standard Juvenile Court Actof the N.P.P.A., that delinquency cases should betreated in precisely the same way as neglect and de-pendency cases.

"I have been able to find no statistics later thanthose in TEETERS AND REINEmANN, op. cit., p. 332,

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THE JUVENILE COURT

The argument of Tappan against unofficial proba-tion might be applied as well to all juvenileprobation: ". . . unofficial probation... full grown... threatens to dwarf the judicial process.... .,40

Several writers have recommended detachingprobation from the juvenile court. In its place,they would include the functions of probationamong those of a state-side administrative agencyfor treating all cases from the juvenile courts.

I am persuaded ... that... probation... will notalways be contented with the role of advisory service toour courts; that the day is not far distant when proba-tion will be independently organized and administeredwith the same dignity, initiative and independence thatour hospital systems now enjoy.41

In the same way that the role of the juvenile courtin society remains ambiguous, the position ofprobation vis-a-vis the court is unclear. It hasalready been noted that some probation officersconsider informal probation one of their mostimportant tasks2

The statute providing for probation in thejuvenile court sets out two specific tasks for theprobation officer.4 The first is an investigation ofthe background of each child adjudged delinquent;the second, supervision of children placed on pro-bation. In addition, the probation officer is requiredto be present at the trial of the delinquent. He isrequired to report to the judge on the results of hisinvestigation. The report must contain informationas to the child's character, his school record, homesurroundings, and previous complaints against thechild. But other than providing a rather meagreoutline of the officer's task, the statute is of littlehelp in defining what the probation officer is to do.It does not specify the methods he is to use in hisinvestigations, nor does it describe his duties ofsupervision. Therefore, there is room for eachcourt and each probation officer to define their ownconcept of the probation job.

In his dealings with children placed on proba-

Table of Dispositions. This is a general nationwidesurvey, and it probably does not reflect the true situa-tion in Massachusetts today. However, conversationswith probation officers, members of the staff at theJudge Baker Clinic and psychiatrists attached to theDistrict Courts, as well as with a representative of theYouth Service Board indicate the truth of the statementin the text.40 TAPAN, op. cit., p. 203.41

SAu'roD BATES, The Next Hundred Years, inPROBATION AND PAROLE PROGRESS, N.P.P.A. YEAR-

BOOK, 1941, pp. 83-84.42 See footnote 14, p. 5

MASS. ANxo. LAws, c. 119, sec. 57.

tion, the probation officer may assume two roles:one is that of a supervisor, who is there simply tosee that the boy complies with the terms of hisprobation. The other is a quasi-therapeutic role, inwhich the probation officer acts as the child's"Friend" in his contacts with him. The latter role,however, carries with it inherent difficulties, in thatthe child must realize that his "Friend" will reporthim to the judge if he misbehaves; he may askhimself, therefore, whether the probation officer isin reality a very good friend."

He (the probation officer) can only be what he is-arepresentative of the state, employed both to give aidand counsel to each delinquent with regard to elimin-nating or avoiding the situations productive of delin-quency and to keep the court informed about thedelinquent's progress in this endeavor. 5

Here again, the therapeutic aims of the courtsystem are confronted with its punitive aspect.Social workers such as Witmer feel that these twoelements cannot really be reconciled in the samesystem. Wollan, in his description of the Citizen-ship Training Group program in Boston, mentionsthat the CTG must be divorced both from probk-tion and from the court, and that it cannot haveany punitive tasks. In the CTG system, all mat-ters such as violations of attendance are referred tothe probation officer for disposition." Cantor, too,believes that the probation officer should limithimself in his functions to those of a "psycho-logical policeman."47

From the point of view of the legal system as wellas for the therapeutic considerations mentionedabove, it would be desirable to clarify the role ofthe probation system in the treatment of de-linquency, and perhaps, to consider its abolition asa separate entity altogether. It has already beenshown that this recommendation has been putforth by several writers. The problem, however, isso inextricably tied up with the question of theextent to which the judge should have discretion indetermining the form treatment, that it is dif-ficult to discuss the one without the other.

44 HEI N L. WrNmR, op. cit., pp. 165-66.5 Ibid.46 KENETH G. WoLLAN, The Citizenship Training

Program of the Boston Juvenile Court, in PROBATIONAND PAROr PROGRESS, supra, p. 385. Compare also,FRITz REDL AND DAVID WINEmAN, CHILDREN WHOHATE, (Glencoe, Ill., 1951), pp. 236-37, for a descrip-tion of role distribution in the Pioneer House project.There, too, it was felt imperative to separate disciplinefrom therapy.

47 NATHANIEL CANTOR, The Function of Probation,

in ibid., p. 277, 288.

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A-III

The statutory definition of delinquency is ofcrucial importance in discussing the scope of thecourt's jurisdiction. It is of great significance aswell in discussion of the court's role as a judicialbody. The definition will determine whether thecourt is to act in the capacity of an agency de-signed to prevent anti-social behavior prior to aninfraction of the legal code, or whether, as a courtof law, it is to limit itself to those cases where therehas been such an infraction.

Probably, the early founders of the juvenilecourt movement were not concerned so much withthe prevention of delinquency as with the treat-ment of young offenders; it was a movement thathad as its first aim the amelioration of the treat-ment afforded convicted offenders, rather than theprevention of crime.48 A secondary purpose was,however, to prevent crime, by transforming youngoffenders into good citizens. The movement was soclosely connected to "child saving" in general thatit is difficult in the early stages to distinguish themotivations of the founders regarding delinquencyfrom the efforts to help neglected and dependentchildren.49 For the purposes of this paper, it isimportant only that the movement was concernedspecifically with the welfare of children, rather thanwith the protection of the community from youth-ful anti-social behavior. But today, both becauseof the existence of the juvenile court and because ofthe supposed prevalence of juvenile crime, thoseconcerned with the juvenile court are increasinglyinterested in finding ways of protecting the com-munity from the depredations of anti-socialchildren. One reason for the growth of this interestmay be the accusation that the court "molly-coddles" juvenile offenders. The recognition thatmany children who are not brought into court maynevertheless be either potential or actual menacesis an added factor in placing a considerable burdenof prevention activity on the court.

The Massachusetts statute is so drawn that itcan be used to impose treatment prior to the com-mission of a delinquent act. Delinquency itself isdefined as the commission of an act in violation ofthe law and not punishable by death by a childunder the age of seventeen. However, a child maybe charged with "waywardness," and thus besubjected to the jurisdiction of the court without

48 See Part A-I.9 TEETERS AND REiNEMANN, op. cit., pp. 41-43.

having committed an unlawful act. A "waywardchild" is

a child between seven and seventeen years of age whohabitually associates with vicious or immoral persons,or who is growing up in circumstances exposing him tolead an immoral, vicious or criminal life. 0

A distinction is drawn between the treatment thatis to be afforded a wayward child and that given adelinquent. A delinquent child may be committedto the Youth Service Board under the broadpowers given to that body in regulating the libertyof a delinquent. A wayward child, however, maybe dealt with by the Youth Service Board onlyin the same way as a neglected child is treated bythe Department of Welfare.51 A child who has notviolated the law is not subject to the same treat-ment as one who, but for the special laws concern-ing anti-social children, would be a criminal.

Nevertheless, the court is given jurisdiction overa child before he has violated the law. Thus, itenters into an area which, according to somewriters, should be reserved for other agencies.

We must face realistically the inherent limitations ofa legal process which is designed to enforce specificrules through their breach. The law may not...impose anticipatory control upon the individual whohas not yet offended against it .... It cannot withoutgrave injustices prevent the first offense through ef-forts of personality diagnosis and treatment. 2

Another writer has objected to allowing the courtto impose "anticipatory controls" on the basis thatscientific knowledge is not so accurate as to allowreliable prediction of future behavior. Therefore, heargues, it is unjust to impose such controls, becausethe child may never commit a violation of law.wThus, disposition (and especially confinement)should depend in part upon the "gravity of themisconduct which brought the child before thecourt."' ' Further, the same writer asserts, inpractice, commitments are frequently made tomeet the requirements of "justice," rather than"treatment.'5 5 Insofar as the objection is based

50 MASS. ANNo. LAws, c. 119, sec. 52.51 MAss. AiNeo. LAws, c. 119, sec. 58."PAUL W. TAPPAN, The Adolescent in Court, 37 J.

CRIX. L. & CRDIIN. 216, 227-228 (1946)."DAVID BOGEN, 'Justice versus Individualized Treat-

ment in the Juvenile Court,' 35 J. Caim. L. & CRIIN.249, 251 (1944).

'4Ibi4.55 ,,... Thus we find that in practice the more severe

types of treatment are resorted to only in cases wherethe child has committed an offense sufficient to justify

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THE JUVENILE COURT

upon the inadequacy of predictive tools, re-searches of the Gluecks and their development ofthe Glueck prediction tables may reduce its force. 56

The basic legal problem, however, will remainlinsolved. The possibility of accurately predictinganti-social behavior will not supply a standard forinvocation of the court's jurisdiction. In the caseof any child before the court, it will still be neces-sary to determine whether the probability that hewill become a danger to society is great enough tojustify interference by the state with his liberty.

If the court were designed to protect all children,exercise of its powers without reliance upon well-defined standards would not pose such a difficultproblem. However, the court was not establishedfor such a broad purpose. It is limited to providingcare only to those children in need of it. A child hasthe right not be become a ward of the state. In thecase of delinquency, there is the possibility, at thevery least, that the child may feel the conse-quences of being placed under the care of thestate as unpleasant. A child who is not a danger tosociety has a right not to be subjected to un-pleasant treatment by the community. Therefore,scientific advances will not obviate the necessityfor adherence to proper standards in invoking thejurisdiction of the juvenile court. Only by adheringto legal norms can the rights of all children to theirfreedom be protected.

A-IV

This paper has analyzed the problems of de-linquency control from the standpoint of the socialinstitutions necessary to combat youthful anti-social behavior. It has not been concerned withsubstantive methods of treatment. It must benoted, however, that to a certain extent the prob-lems of organization depend upon the formthat treatment takes. If it is recognized thatexpert knowledge is necessary to determine how adelinquent can be cured, then the state shouldprovide for its application to every case. If expertskill is required to carry out the treatment itself,the state must provide the necessary trained per-sonnel. It must also develop a procedure throughwhich their skill can be applied.

If places of confinement are in reality prisons,

such a serious move. In other words, the juvenile courttheoretically renounces the idea of dealing with thechild on the basis of the offense but yet turns to theessential principle of "justice" when it comes to animportant decision." Ibid.

51 S. and E. T. GLUECK, UNRAVELING JUVENILEDELINQUENCY (Cambridge, 1950).

the only criterion for commitment should be themagnitude of the offense. If, however, they aretreatment centers designed to cure sick childrenand to protect the community, the standards forcommitment should be based on clinical diagnosisand the weighing of the rights of the child againstthe danger his actions present to the community.It has already been stated that the developmentof scientific methods of prediction will not elimin-ate the necessity for judicial decision. As ProfessorSheldon Glueck has pointed out to the writer, asick person has a right not to be treated; it is onlywhen he becomes contagious that he may bequarantined. The same principle of social pro-tection must be applied to the treatment of de-linquent children.

PART B

In the following pages, a proposal is set forthembodying a suggested solution to some of theproblems presented in this paper. The proposal isin the form of a statute with comments appendedto each section. Because of limitations of space, thestatute and the comments have been abbreviated.More detailed commentary may be obtained bycommunication with the author. The statute isconcerned exclusively with the delinquencyjurisdiction of the juvenile court. It does not enterinto a discussion of dependency or neglect; nor doesit deal with the problems raised by "defectivedelinquents" and other children whose behavior isdescribed in recognized categories of mentaldisease. The reason for omitting discussion of theseaspects of the court's jurisdiction is the author'sopinion that the function of the juvenile court indelinquency is in large part determined by the factthat the community must be protected from anti-social behavior. In this sense, the juvenile court inits delinquency aspect is similar to the criminalcourts. Even under ideal conditions, therefore, thechild and the community look upon the court, atleast in part, as an agency of punishment. Thisorientation of the delinquency jurisdiction of thecourt, therefore, raises problems of a differentnature than those of the neglect and dependencyjurisdiction.

The proposal was drawn for the purpose of pro-viding a system in which the outcome of each casewould be conditioned by considerations both of alegal and of a clinical nature. Under the presentMassachusetts system, the lawyer, expert in theevaluation of only one of these considerations, isalone responsible for disposition. Under a Youth

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HENRY NUNBERG

Authority program, the judgment of the expertadministrator prevails. The special skill of theadministrator extends only to an evaluation ofclinical data and the application of treatmentnecessary to cure the disease. The expert is nottrained in the delicate process of balancing therights of the individual against the demands of thecommunity. The training of the lawyer and theinsights of the clinician are equally necessary inarriving at a disposition. Therefore, a system isneeded under which the results of evaluation ineach case will be the integrated expression of allthe values that strive for recognition in the con-cept of the juvenile court.

B-I

PROPOSAL FOR A PLAN RELATING TO THE CONTROLOF JUVENILE DELINQUENCY

I. Definitions

1. "Delinquent child" and "Wayward child"A. A Delinquent child is a child between the

ages of seven and seventeen who violatesany city ordinance or town by-law or com-mits any offense against the laws of thecommonwealth, and who is adjudged to bein need of:a. treatment or supervision in order to pre-

vent further outbreaks of illegal and anti-social behavior, or

b. confinement, in order to protect himselfor the community.

B. A Wayward child is a child between theages of seven and seventeen who:a. has engaged in a consistent pattern of

serious anti-social behavior, (but has notviolated any city ordinance or town by-law and has not committed any offenseagainst the laws of the Commonwealth),and

b. is in immediate danger of becoming aDelinquent child, or a criminal, unless heis subjected to preventive treatment, and

c. is in need of, and will more proably thannot benefit by, treatment or supervisionwithout confinement.

Comment: Compare Mass. Anno. Laws, c. 119, sec.52. The definition of "delinquent child" has beenexpanded so as to include children charged withcapital crimes. Also, provision is made to permitthe finding that a child has performed a delinquentact, but is not a delinquent child. If a finding ismade that a child has performed a delinquent act,

but that it is not necessary either for his ownwelfare or for the welfare of the community tosubject him to further state control, the child willnot be found delinquent.

The definition of "wayward child" has beennarrowed to provide a standard that is less vaguethan that in the present statute in Massachusetts.Compare Mass. Anno. Laws, c. 119, sec. 52. Thesection is intended to deal with those cases whichappear to require attention by the state, but inwhich there has been no technical violation of law.It is to be noted that only supervisory, and notconfinement, techniques may be used on childrenfound to be "wayward."

II. Delinquency Control Areas

1. There shall be [X1 Delinquency control Areas inthe Commonwealth.

[2. Establishment in each Area of a Court for theDiposition of Juvenile Cases, a Juvenile Court,and a Facility of the Youth Service Board.]

Comment: This section establishes a regionalsystem under a state-wide plan of organization todeal with problems of delinquency control. Ineach regional area, there is a complete set of in-stitutions, including the regional courts which areprovided for in later sections, and a regionaloffice of the Youth Service Board.

III. The Juvenile Court

1. There shall be one Juvenile Court for eachDelinquency Control Area in the Common-wealth.

2. Composition of the Juvenile Court; qualifica-tions of the judge.A. The court shall consist of a judge, a clerk of

the court, a court stenographer, and suchadministrative personnel as are required tokeep the records of the court.

B. The judge shall be a lawyer and a memberof the Bar of the Supreme Judicial Court ofthe Commonwealth, and shall have en-gaged in the practice of law in the Com-monwealth for [XI years.

[3. Powers, Duties, and Procedures. See SectionVIII, subsection 1 below.]

4. Jurisdiction.A. The juvenile court shall have jurisdiction

over all cases in which there is a petition ofneglect or dependency in the case of a childunder seventeen years of age. 7

7 Since this paper is devoted to the delinquencyjurisdiction of the juvenile court, for the reasons al-

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THE JUVENILE COURT

B. The juvenile court shall have jurisdictionover all cases in which there is a petition ofdelinquency or waywardness, and to renderdecisions as hereinafter provided.

C. The juvenile court shall have jurisdictionover adults in cases in which contributionto delinquency, waywardness, neglect ordependency is charged.58

D. The juvenile court shall be a court of recordof the Commonwealth.

5. Appointment of Judges to the Juvenile Courts;terms of office.A. Judges of the juvenile courts shall be ap-

pointed by the Governor, upon the recom-mendation of the Board of Juvenile CourtJudges.

The first appointments to the juvenilecourts shall, however, be made by theGovernor upon the recommendation of theCommissioners of Probation, Mental Health,Welfare and Corrections, the judge of thepresently existing juvenile court of theCity of Boston, the Youth Service Boardand the Chief Justice of the SupremeJudicial Court.

[B. Term of Judge. Provision for an extendedterm of office for judge.]

6. Referees.The judge of each court may appoint such

referees as necessary to hear petitions comingbefore the court and to make findings, subject tothe disapproval of the judge.

Comment: The main feature of this section is thatit establishes a state-wide juvenile court system, asa substitute for the juvenile-sessions system nowused in Massachusetts outside of the city ofBoston. Since the courts are established on aregional basis, rather than one for each politicalsubdivision of the state, it is thought that the planwould be feasible from a financial point of view.

It is to be noted that no provision is made for aprobation service attached to the court. The proba-tion function is to be performed by the regionaloffice of the Youth Service Board.

Formal qualifications for the position of juvenilecourt judge have been limited to legal education

ready discussed, there will be no further mention of theneglect and dependency jurisdiction of the court.

53 It has been thought desirable to retain the juris-diction over adults of the juvenile court, since fre-quently, it is necessary to treat the parents in order toeffect a cure of the child. However, this is a questionthat the writer has not explored fully, and therefore,there will be no further discussion of it in this paper.

and experience. Until it becomes possible to de-velop a separate profession of juvenile courtjudge, as suggested by Sheldon Glueck, 59 it seemsadvisable to limit the statutory standards to thosestated in this section. Moreover, subsection 5,paragraph A, provides a method through whichmen qualified to act as juvenile court judges maybe chosen.

IV. The Board of Juvenile Court Judges

[Sections 1 and 2 establish the Board of JuvenileCourt judges, and provide that it shall be com-posed of the judges of all the Juvenile Courts ofthe state.]3. The Board shall meet from time to time to

discuss problems affecting the Juvenile Courtsof the Commonwealth.Upon the occurrence of any vacancy in any

Juvenile Court, the Board shall present to theGovernor a recommendation or recommendationsas to candidates to fill the vacated office.

V. The Court far the Disposition of Juvenile Cases

1. There shall be a Court for the Disposition ofJuvenile Cases (hereinafter known as theCourt) in each Delinquency Control Areaof the Commonwealth.

2. Composition.A. Each Court shall be composed of a Chief

Judge and two Special Judges.(i) The Chief Judge shall be the Judge of

the Juvenile Court of the DelinquencyControl Area.

(ii) The Special Judges shall be experts inthe diagnosis and treatment of delin-quent children.

B. The Special Judges shall be chosen on thebasis of their experience and training in thetreatment and diagnosis of delinquentchildren.(i) One Special Judge of each Court shall

have received the degree of Doctor ofPhilosophy or the equivalent thereof,in clinical psychology, from an ac-credited university, and shall have hadat least [X] years of experience in thetreatment of juvenile delinquency.

(ii) One Special Judge of each Court shallhave received a degree of Master of

5'SHELDON GLU]ECE, The Sentencing Problem, Ad-dress delivered at the Judicial Conference of theThird Circuit, United States Courts, at Atlantic City,N. J., September 12, 1956.

19581

HENRY NUNBERG

Arts or Sciences, or the equivalentthereof, in sociology, psychology, orsocial work, from an accredited uni-versity, and shall have had [X] years ofexperience in social casework withjuvenile delinquents.

3. Jurisdiction.A. The Court shall have jurisdiction over all

cases arising in its Areas in which a petitionof delinquency or waywardness has beenfiled, and in which the judge of the JuvenileCourt has made a finding:(i) in the case of a petition of delinquency,

that the child has committed a violationof law, as described in Section I, sub-section A;

(ii) in the case of a petition of waywardnessor delinquency that the child has en-gaged in a consistent pattern of seriousanti-social behavior.

B. The Court shall have jurisdiction as a courtof first instance over all cases arising in itsArea in which it is alleged that the YouthService Board has abused its powers.In all such cases, however, the Chief Judgealone shall render the decision of the Court;the Special Judges shall, however, advisethe Chief Judge in those aspects of suchcases which concern methods of treatment ofdelinquents and wayward children.

C. In all other cases, decisions of the Courtshall be rendered by the Chief Judge withthe concurrence of at least one of the SpecialJudges.

4. Powers, Duties, Procedures.-[See SectionVII subsection 2, below.]

5. Appointment of the Special Judges.The special judges of each Court shall be

appointed by the Governor, upon the recom-mendation of the Youth Service Board and theCommissioner of Mental Health.

Connient: The dispositions court is the centralfeature of this plan which distinguishes it fromother proposals which have been made for post-adjudication procedure in determining the formthat treatment is to take. It differs from thepresent plan in effect in Massachusetts in that itdivests the judge of the juvenile court, sittingalone, of independent responsibility for disposi-tion; it differs from the Model Youth CorrectionAuthority Act and similar proposals in that itleaves the power of disposition in a judicial body,and gives the juvenile court judge a voice in de-

termining disposition. The author is unaware ofany other plan which provides for a sharing ofultimate responsibility by the court and theexperts in determining the crucial question of whatdisposition will be made of a case that is beforethe juvenile court.

The proposal results from a consideration of thedilemma posed by the dispositions problem. Onthe one hand, it seems undesirable to leave ulti-mate responsibility for disposition in the hands ofa lawyer-judge, who by training and often bytemperament is not suited to make a decision thatis in part a choice between therapeutic methods.On the other hand, since severe restraints upon theliberty of the individual may be imposed, it isequally unsatisfactory to place the dispositionsfunction in an administrative body composedsolely of experts on clinical method. The argu-ments of Bogen and Tappan concerning the un-desirability of imposing what Tappan calls"anticipatory controls" upon an individual arerelevant here as well.6 0 The underlying premise isthe same: the interest of the individual to have thestate not interfere in his life is the kind of interestthat ought to be given the greatest possible pro-tection.

Because both therapeutic and legal principlesare integral parts of each decision as to disposi-tion, provision should be made for their directexpression in the body that performs the dis-position function. Therefore, even a system inwhich the judge makes his decision upon therecommendation of experts is unsatisfactory, fortwo reasons: First, the judge acting entirely uponthe experts' recommendations, is little more thana puppet; the prestige and meaning of the court asa court of law stand in danger of becoming entirelysubmerged. On the other hand, the judge left freeto decide by himself the best course of treatment tobe followed, may act on a relatively uninformedbasis. The dispositions court is suggested to provide a forum in which the lawyer and the expertcan discuss each case and take joint responsibilit%for the results of their deliberations. Further, itprovides an opportunity for expert and judge towork out together a policy of disposition to befollowed, in different classes of cases. Individuali-zation of justice and the legal requirement ofadherence to precedent may thus, to a certainextent, be reconciled.

The dispositions plan is a way to stave off the

6" See page 18, ante.

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THE JUVENILE COURT

abdication of the judges in determining what formtreatment will take.

The wise judge does not surrender the judging processto the specialist... It is his domain to pass their con-tributions through the alembic of his mind and distilthem into a workable program that takes account oflegal demands and social limitations, as well as clinicalfindings."1

In this body, the judge will still bear the burden ofresponsibility for taking into account "legal de-mands and social limitations"; the specialist willinterpret the clinical findings. Each will con-tribute his own point of view; individual rights,community demands and clinical requirementswill. of necessity, be considered in every dis-position made by this court.

The proposal is unorthodox in that it providesfor laymen to sit as judges in a court of law. Thispractice is seldom followed in the United States;there is, however, a precedent in the Englishpractice of using lay magistrates extensively(sitting, incidentally, without a lawyer to share thebench with them) to hear and dispose of casesinvolving juvenile offenders.

The plan is similar to the proposal of ProfessorSheldon Glueck that judges of criminal courts siton parole boards, in that it serves to acquaint thejudge, through direct participation in their deliber-ations, with the considerations that enter into thedecisions of experts in deciding how to treatoffenders.

More study and thought are necessary to de-termine what the qualifications of the SpecialJudges should be. The standards proposed in sub-section 2B are thought to contain minimumeducational requirements; however, it is possiblethat the fields of study designated as prerequisitesfor the office are not the most relevant ones.Considerable experience in practical work withanti-social children is, of course, essential.

The procedure of subsection 3B has been sug-gested because of the desire to emphasize the con-siderations that should govern the court's decision,and because it is felt that such cases will bedirectly concerned with questions of infringementof personal liberty. In such cases, the legal point

"SHELDON & ELAoa GLUECK, 1000 JUVENILEDELINQUENSS, (Cambridge, 1934), p. 114.

6' It has also come to my attention recently that inthe Federal Republic of Germany the juvenile court ofeach district is composed of four unpaid lay magistrateswho sit together with a stipendiary, lawyer-magistrateto decide upon juvenile cases. GORDON ADLa.x (1956)Cptm. L. REv. 401 (June 1956).

of view should be predominate. The reason thatthis jurisdiction is placed in the dispositions courtrather than in the juvenile court is toremind the lawyer to consider the clinicalnecessities of the case. The adversary natureof our court system is thereby tempered, asit is in all juvenile courts. Although the YouthService Board will have an opportunity to defendits actions, the presence of clinicians in the courtwill tend to create the understanding and co-ordination necessary to the proper functioning ofthe system.

The Youth Service Board has been made re-sponsible for recommending to the Governor per-sons to act as Special Judges. It is hoped that thisplan will serve to bring personnel of the YouthService Board into the court system, and therebyprovide a means of advancement for social workers,psychologists and others employed by the Board.It is also hoped that this method of selection willbring about a degree of cooperation between courtand agency.

VI. The Caurt of Juvenile Appeals

1. There shall be a Court of Juvenile Appeals tohear all cases appealed from the Juvenile Courtand the Court for the Disposition of JuvenileCases.

2. The Court of Juvenile Appeals shall be com-posed of the members of the Board of JuvenileCourt Judges.

3. The Chief Justice shall be the Judge of theJuvenile Court of the Boston (Metropolitan)Delinquency Control Area.

4. Appeals from the decisions of the Court ofJuvenile Appeals shall be made directly to theSupreme Judicial Court, according to thd rulesof that Court.

- 5. The Judge of the Juvenile Court of the De-linquency Control Area in which a case onappeal originated shall not participate in thedeliverations of the Court of Juvenile Appealsconcerning such a case.

Comment: ... By providing for an appeal on theissue of treatment ... the law stultifies thattribunal which.., is best qualified to pass ontreatment matters.

The specialized appellate court is suggested toeliminate the difficulties arising from juvenileappeals in the ordinary court system."4

6S. & E. T. GLUECK, op. cit., p. 24."The system of appeals in effect at present in

Massachusetts is of such a nature that if it were used

1958]

HENRY NUNBERG

VII. The Youth Service Board

1. Except as otherwise provided herein, and exceptas inconsistent with the provisions of this Act,Chapter 6, Sections 65 through 69A, andChapter 120 of the General Laws of Massa-chusetts, are hereby incorporated into this Act.

2. The powers and functions of the Youth ServiceBoard are hereby extended to include:A. Those functions formerly performed by the

office of probation in juvenile cases, andB. Those functions formerly performed by

clinics attached to the District Courts ofthe Commonwealth in juvenile cases, and

C. Such other powers and functions as may benecessary to carry out the purposes of thisAct.

D. If a delinquent child has been committed tothe custody of the Facility or its Delegatewithout confinement, as hereinafter pro-vided, and the Director of the Facility or hisDelegate deems it necessary for the safety ofthe child or of the community, the Directormay:a. without notice to either the Juvenile

Court or to the Court for the Dispositionof Juvenile Cases, place the child indetention for a period not to exceed[X] hours, and

b. if the Director deems it necessary toplace the child in confinement for alonger period of time, he shall apply tothe Juvenile Court for an order changingthe status of the child from that of treat-ment or supervision (as defined in SectionI, subsection 2, A & B) to that of con-finement (as defined in Section I, sub-section 2, C).

Such an order of the Juvenile Courtshall be subject to disapproval upon con-sideration by the Court for the Dis-position of Juvenile Cases, under SectionV, subsection 3, C.

extensively it could destroy the juvenile court alto-gether. The trial on appeal is in the Superior Court;in effect, it is a proceeding de novo. If the appellant sodesires, he may have a jury trial, since the case is tobe determined as in a criminal trial. MASS. ANNo.LAWS, C. 119, sec. 56. The study by Alper of appealsfrom the Boston Juvenile Court from 1930-1935demonstrates the damage that the juvenile court sys-tem can suffer from such an appeals system. B. S.ALPER, JuVENILE JuSTicE-A STUDY oF JUvENILEAPPEALS TO SUF OLK SUPERIOR COURT, BOSTON, 1930-1935, 28 J. CR-m. L. & Ciu~m. 340 (1937). The ideaof a separate court to hear juvenile appeals is notoriginal with the author; although I am unable to givecitations, other writers have made similar proposals.

E. Section 6 of Chapter 120 of the GeneralLaws is hereby repealed.

3. The Youth Service Board shall establish aYouth Service Board Facility (hereinafter re-ferred to as the Facility) in each DelinquencyControl Area.A. The Facility shall include a detention center,

andB. Such other buildings and equipment as are

necessary to enable it to conduct studies andadminister programs of treatment, super-vision and prevention of delinquency in theArea.

4. There shall be an Area Director of each Facility,and such other appropriately trained personnelas necessary shall be employed by the YouthService Board in each Facility to carry outthe functions provided for in this Act.

Comment: The purpose of this section is to inte-grate all forms of treating anti-social children.The new service will retain the functions of thepresent Youth Service Board; in addition, it willundertake the tasks now performed by the pro-bation office. The Youth Service Board is in-tended to be separate from the court system, butintegrated with it. The personnel and study centersof the Board are to aid the courts in reachingdecisions as to the disposition of cases involvingdelinquency and waywardness.

VIII. Proceedings before the Juvenile Court and theCourt for the Disposition of Juvenile Cases

1. Proceedings before the juvenile court.A. Upon a child being brought before the

juvenile court on a petition of delinquency orwaywardness, a hearing shall be held beforethe judge of the juvenile court, in the pres-ence of the child and his parent or guardian.a. If the child has no parent or legal

guardian, the juvenile court shall appointa guardian for the purposes of the pro-ceedings.

b. A representative of the Facility of theYouth Service Board of the DelinquencyControl Area shall be present at all pro-ceedings before the juvenile court.

B. If the petition complains of delinquency orwaywardness, the juvenile court shall de-termine:a. Whether the child has committed the act

complained of, andb. Whether, if it is determined that the

child has committed the act complainedof, the act constitutes a violation of any

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THE JUVENILE COURT

city ordinance, town by-law or offenseagainst the laws of the Commonwealth,or

c. Whether the child has engaged in a con-sistent pattern of serious anti-social be-havior.

C. Upon the determination of the juvenile courtthat a child has committed a violation of lawas provided in subsection B. paragraphs aand b, the judge shall make a preliminaryfinding of probable cause for an adjudicationof delinquency.a. The judge shall thereupon continue the

case for a period of not less than [XJdays and not more than [XI days.

b. The judge shall thereupon place thechild in the custody of a representativeof the Youth Service Board Facility ofthe Delinquency Control Area.(i) During the continuance, the Area

Facility shall undertake such studyas may be necessary to determinefinal disposition of the case, and

(ii) Write a report containing the resultsof the study and recommendationsfor disposition. Such report shall beforwarded to the Court for the Dis-position of juvenile Cases.

c. If the juvenile court has reason to believethat the safety of the community de-mands that the child be placed in de-tention during the continuance, it may ofits own motion order confinement of thechild by the Facility of the Youth ServiceBoard.

d. If the representative of the Youth ServiceBoard has reason to believe that thewelfare of the community or of the childdemands confinement of the child duringcontinuance, the representative maymake a motion that the juvenile courtorder the confinement of the child forthe period of the continuance.

Unless the juvenile court finds thatthe motion of the representative is notmade with a reasonable belief that con-finement during continuance is necessaryfor the welfare of the child or of thecommunity, it shall grant the motionand issue the order of confinement.

D. Upon the determination of the juvenilecourt that the child has engaged in a con-sistent pattern of serious anti-social be-havior as provided in subsection B, para-

graph c, the judge shall make a preliminaryfinding of probable cause for an adjudicationof waywardness.a. The judge shall thereupon continue the

case for a period of not less than [X]days and not more than [X] days.

b. The court shall thereupon place the childin the custody of a representative of theYouth Service Board Facility of theDelinquency Control Area.(i) During the continuance, the Area

Facility shall undertake such studyas may be necessary to determinefinal disposition of the case, and

(ii) Write a report containing the re-sults of the study and recommenda-tions for disposition. Such reportshall be forwarded to the Court forthe Disposition of Juvenile Cases.

Comment: The purpose of this subsection is to setforth a procedure by which the judge may find thefacts and, the applicable law in cases of delinquencyand waywardness. The juvenile court has thenperformed its function. Every case must be con-tinued to provide an opportunity for the kind ofstudy that the specialists deem necessary to arriveat an intelligent conclusion as to what should bedone with the child. There is also a provision, in thecase of children who have been charged with aviolation of law, for the application of necessaryrestraints. There is no such provision in the case ofwayward children. Again, this reflects the phil-osophy that a differentiation in treatment on thebasis of "behavior circumstance," as some writershave called it, should properly be made in a legalproceeding.2. Proceedings before the Court for the Disposition

of juvenile Cases.A. Upon termination of the continuance, the

case of a child in which the juvenile courthas made a preliminary finding of probablecause for adjudication of delinquency orwaywardness shall be brought before thecourt for the disposition of juvenile cases(for purposes of this subsection, referred toas the "Court").

B. If the juvenile court has made a preliminaryfinding of probable cause for adjudication ofwaywardness:(i) the Court shall determine whether the

child:a. is in immediate danger of becoming

a Delinquent child, or a criminal,

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HENRY NUNBERG

unless he is subjected to preventivetreatment, and

b. is in need of, and will more probablythan not benefit by, treatment orsupervision without confinement.

(ii) If the Court has found in the affirmativeas to subparagraph (i) above, it shalladjudge the child Wayward, and re-mand him to the Youth Service BoardFacility for treatment or supervisionwithout confinement for such period, notto exceed two years, as the Facilitydeems necessary.

C. If the juvenile court has made a preliminaryfinding of probable cause for adjudication ofdelinquency:

(i) the Court shall determine whether thechild is in need of treatment, super-vision or confinement;

(ii) if the Court determines that the childis in need of treatment, supervisionor confinement, it shall adjudge thechild Delinquent.

(iii) The judgment of delinquency shallstate that:a. the child is in need of treatment or

supervision, orb. the child is in need of confinement.

(iv) The Court shall remand the Delinquentto the custody of the Director of theYouth Service Board Facility or hisrepresentative, for such period as itdeems necessary, or until the childshall have attained his 23rd birthday.'The order of remand shall state that:a. the child is to be confined, orb. the child is to remain at liberty,

under treatment or supervision, inthe discretion of the Director of theYouth Service Board Facility.1. In the case of a child remanded

with the direction that he is toremain at liberty, if thereafter itbecomes necessary for the safetyof the child or of the community,the Director of the Facility or hisrepresentative may, without ob-taining an order from any court,confine the child in its detentionhome for a period not to exceed[X] hours.

2. If the Director of the Facilitydeems it necessary to retain the

child in confinement thereafter, itshall apply to the juvenile courtfor an interim order of confine-ment. Such order shall be con-firmed by the Court at its nextregular session. Unless a questionis presented of abuse of hispowers by the Director of theFacility or his representative, theCourt shall reach its decision inaccordance with Section V, par-agraph 2C. If such a question ispresented, the decision shall bemade in accordance with SectionV, paragraph 2B.

c. The Youth Service Board shall re-tain its powers, as enumerated inChapter 120, section 12 of the Lawsof Massachusetts, insofar as theyconcern children under confinement.

D. A representative of the Youth ServiceBoard Facility shall be present at all hear-ings before the Court.

3. Right to Counsel.The child shall have right to counsel at all

hearings before the juvenile court and theCourt for the Disposition of Juvenile Cases.

Comment: This subsection is spelled out in detailin order to define clearly the powers of the dis-positions body. In its division between the per-missible disposition of cases of delinquency andthose of waywardness, the subsection is consistentwith the philosophy that "behavior circumstances"should set limits on what kind of treatment maybe administered.

The power of the administrative agency to de-termine whether or not the child is to be at libertyor not, is circumscribed. As has already beenstated in another connection, it cannot, withoutconsulting the court, change a child's status fromthat of liberty to that of confinement.

The divestment of the Youth Service Board ofits powers to change freely the status of a childfrom liberty to confinement is compensated for bythe participation of clinicians in the body de-termining disposition. Therefore, the need tochange the status of offenders should not occur toofrequently. When it does occur, the Youth ServiceBoard representative will have to go before thecourt to obtain an order changing the status of thechild. This procedure, while allowing the Boardflexibility, protects the child from unnecessary in-fringements on his liberty.

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