When an offense is serious enough, an offender has had multiple offenses, or the offender is deemed unfit for diversion due to some other reason, alternatives to a rehabilitative approach may be necessary.
A juvenile who enters “the system” will encounter many figures who make key decisions about their short- and long-term future. In this Assignment, you analyze the key roles and responsibilities of major figures in juvenile proceedings.
First, imagine that you are taking on one of the following roles. If possible, take on a role that you have not had in your profession:
Another role in the process
Next, read the Week 5 case study found in the Criminal Justice Case Studies: Juvenile Delinquency and Justice document.
Aspects of the Assignment require you to apply your learning to this case study.
In 750 to 1,000 words, address the following:
Recommend the offender in the scenario to either family and juvenile court or adult criminal court based on a particular perspective, such as a prosecutor, a judge, or a social worker.
Recommend a sentence for the offender and explain the rationale.
As part of your recommendation, propose a re-entry strategy for the offender.
Support your recommendations with evidence from the Learning Resources and the case study.
Week 5 case study
Adam, a 16-year-old student at the local high school, has had multiple run-ins with law enforcement, beginning with a shoplifting arrest. The store in that first arrest dropped the charges, and Adam made restitution for what he had stolen. Within the next year, it became apparent that Adam had a drug problem, as a teacher reported finding drug paraphernalia on his person and his mother revealed finding drugs around the house. Adam was then picked up for possession of a controlled substance. Adam attended outpatient treatment in lieu of being charged, where he revealed that he had been selling small amounts of drugs to some classmates. He also revealed that his abusive father had left some time ago and that his mother also suffered from drug addiction, often leaving drugs out in the open. After a fight outside a high school football game led to his injuring another student, Adam was sent to various intervention programs to address his drug use and sometimes violent behavior. He rebounded for a time, attending school more regularly and, according to those around him, staying clean. However, in recent months, Adam has fallen in with a crowd of 18- and 19-year-olds who are part of a regional crystal meth operation. Adam arrives before you after having shot and critically wounded a rival drug dealer.
Bolin, R. M., & Applegate, B. K. (2016). Adultification in juvenile corrections: Examining the orientations of juvenile and adult probation and parole officers. American Journal of Criminal Justice, 41(2), 321–339. doi:10.1007/s12103-015-9298-2
For this article, do not read the “Methodology” and “Results” sections from pp. 327–332.
Agnew, R., & Brezina, T. (2017). Juvenile delinquency: Causes and control (6th ed.). New York, NY: Oxford University Press.
Juvenile Delinquency: Causes and Control, 6th by Agnew, R.; Brezina, T. Copyright 2017 by Oxford University Press. Reprinted by permission of Oxford University Press via the Copyright Clearance Center.
Cox, S. M., Allen, J. M., Hanser, R. D., & Conrad, J. J. (2018). Juvenile justice: A guide to theory, policy, and practice (9th ed.). Thousand Oaks, CA: SAGE.
Juvenile Justice: A Guide to Theory, Policy, and Practice, 9th Edition by Cox, S. M., Allen, J. M., & Hanser, R. D. Copyright 2017 by SAGE Publications, Inc. Reprinted by permission of SAGE Publications, Inc via the Copyright Clearance Center.
GREG KOEHLER: Our criminal justice system is a deterrence-based model. Most
criminal justice systems across the world are also based on the idea of deterrence and
that there’s specific laws and specific penalties for breaking the laws. Interestingly
enough, though, several research studies on different types of crime have shown mixed
results for deterrence.
I think it maybe rings true are certain people that deterrence works pretty well because
maybe they were raised that way. And they would fear punishment if they did something
so it should work with criminals. Unfortunately, as you very well know that criminals,
they commit crime for a variety of reasons, some of which are not going to be influenced
by the threat of a punishment or a fine or something like that. So as we move forward in
the criminal justice system and think about different treatment options or even initial
responses to offenders, what do you think we should really be thinking about in terms of
how we’re changing behavior, other than just the threat of punishment?
PETE MEAGHER: Yeah, I think that that’s a big question. For me, I don’t know that we
would ever take off the table some sort of, it’s like, I think of it as like a boundary setting
and saying, you cross over this line, that’s so bad, we’re going to do something as a
result of that. And that makes good sense.
And I think of the individuals that I’ve worked with, even if they had substance abuse
issues or mental health issues, that both the experience of and the threat of a deterrent
or some sort of sentencing situation was very effective in getting their attention and
inspiring them at least to get into treatment. And I think getting them into treatment that
included medication and individual and group therapy was a really helpful thing to kind
of help stabilize them and then move them in a different trajectory. And so I think that
maybe an enlightened use of deterrence is one way to think about it.
I also think we’ve talked a lot about diversion programs that we really try, that we want
to use that as a method of last resort. And that, in many cases, if we can find out
different ways to send a very clear message and give people an option to kind of sort of
look at the deterrence option but also step around it, like, OK, you’ve got this choice.
You continue this behavior, we’ll send you back to jail.
If you do something different, such as seeking treatment, getting a job, doing things that
we want you to do, then we will give you these other options. And I think that that is a
nice and maybe enlightened way of using that sort of right use of force or deterrence to
kind of inspire people to make good decisions and to get healthier. And then I think as
they get healthier, they can be productive members of society.
GREG KOEHLER: Right.
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11 Dispositional Alternatives
Chapter Learning Objectives
On completion of this chapter, students should be able to do the following:
List and describe dispositional alternatives
Discuss the dispositional phase of the juvenile justice process
Discuss probation, conditions of probation, and revocation
Discuss the relationship between probation and restorative justice
List advantages and disadvantages of foster homes
List advantages and disadvantages of treatment centers
Discuss juvenile corrections, dilemmas, and consequences
Present arguments for and against capital punishment for juveniles
Address possible solutions to the effects of incarceration
What Would You Do?
James has been on your caseload for shoplifting for about 4 months. He has had bruises and welts on his arms before, but when asked, he says that they are from
falling, roughhousing with his brother, or altercations with kids at school. You have not thought much about them, although you continue to watch him for other
signs of abuse. You have also noticed that he is quick to anger, often wears clothes that are inappropriate for the weather, and shies away from being touched.
Today, the community service officer calls you and says that you need to come down to the detention center where the kids are washing cars. He reports that James
has some pretty significant marks that he’d like you to look at. Upon arriving, you see James spraying the water hose and laughing and playing with a couple of the
other boys. You walk over to him and start a conversation. You notice he’s wearing a long-sleeve shirt and jeans even though it’s almost 80 degrees outside. You also
notice that he has the sleeves pulled down even though they are getting wet on the ends. After talking for a minute, you ask him to give the water hose to someone
else and to step over to the side of the parking lot with you. He does. You ask him about his home life, school, and brother. Then you ask him if there’s anything he
should tell you or anything he’d like to share. He says no. You ask him if he’s been hurt and if he feels safe at home. He shrugs his shoulders and looks away but
then nods yes. You then ask him to pull his sleeves up so you can see his arms. He does so and you see 15 to 20 cuts on each arm starting just at the elbow. Some are
deep and have started to scab. Others look similar to cat scratches.
When you ask James about the cuts, he shrugs his shoulders and starts to move away from you and back to the car wash area. You again ask him if they are self-
inflicted or if someone cut him. He doesn’t say anything. Finally, you get him to stop walking and compassionately ask him who did this to him. He says, “You
know my mom . . . she gets mad and stuff.” At this point, you decide to ask him if there are other injuries. He pulls up his shirt to reveal slashes on his back and
several small cigarette burns on his side. Then he quickly puts his shirt down and jogs back over to where the kids are washing cars. He tries to rejoin the group and
doesn’t look at you again.
What Would You Do?
1. Do you consider the marks signs of abuse? Why or why not?
2. Who would you contact about the abuse, and what would you state in the report you may be required to file?
3. Would you confront the mother about the cuts and marks? Why or why not?
When attempts to divert a child from the juvenile justice network fail, an adjudicatory hearing is held to determine whether the juvenile should
be dismissed or categorized as a delinquent; as a minor in need of supervision (or authoritative intervention); or as an abused, neglected, or
dependent child. After adjudication, the judge must make a decision concerning appropriate disposition. The judge uses his or her own
expertise and experience, the social background (social summary or predisposition) investigation report, and sometimes the probation officer’s
or caseworker’s recommendation in arriving at a decision.
Many states use a bifurcated hearing process so that the adjudicatory and dispositional hearings are held at different times. This is often
preferred because different evidentiary rules apply at the two hearings. Whereas only evidence bearing on the allegations contained in the
petition is admitted at the adjudicatory hearing, the totality of the juvenile’s circumstances may be heard at the dispositional hearing.
The alternatives available to the judge differ depending on the category in which the juvenile has been placed, but in general they range from
incarceration to treatment, foster home placement, or probation. In the Gault case, the U.S. Supreme Court specifically declined to comment on
the applicability of due process requirements during the dispositional phase of juvenile court proceedings (In re Gault, 1967). Thus, we must
turn to state statutes or lower-court decisions in analyzing this process. Keep in mind that the purpose of the dispositional hearing is to
determine the best way to correct or treat the juvenile in question while protecting society. To accomplish these goals, the court must have
available as much information as possible about the juvenile, his or her background (e.g., family, education, legal history), and available
alternatives. Evidence pertaining to the welfare of the juvenile is generally admissible at this stage of the proceedings, and the juvenile should
be represented by counsel.
Although some nondelinquent juveniles, typically those found to be in need of supervision, may be confined temporarily in specifically
designated facilities, the trend had been toward diverting them to other types of programs. In some cases, the child is permitted to remain with
the family under the supervision of the court; in others, custody reverts to the state, with placement in a foster or adoptive home. The extent of
state intervention has been a subject of considerable controversy, but when the welfare of the child is involved, termination of parental rights
may be the only way to provide adequate protection.
Delinquent conduct always involves a violation of the law—unlike some of the other conduct dealt with by the juvenile court. There are
numerous available dispositions for juveniles in this category, including probation (release after trial with court supervision) under conditions
prescribed by the court, placement in a restrictive or secure facility not operated by the department of corrections, and commitment to a public
correctional facility. The latter disposition is generally used as a last resort but may be necessary to protect society. In some cases, restitution is
used in addition to probation or as a disposition in and of itself. In other cases, weekend incarceration or community-based correctional
programs are used. These programs allow juveniles to remain in the community, where they may attend school, work part-time, and participate
in supervised activities. The effectiveness of such programs is an empirical question, and many of these programs are not adequately evaluated.
Youth may be sentenced by the juvenile or specialized court to complete community service. In this instance, youth clean the streets
rather than be incarcerated.
A juvenile delinquent on probation is released into the community with the understanding that his or her continued freedom depends on good
behavior and compliance with the conditions established by his or her probation officer and/or the judge. Probation, then, gives the delinquent a
second chance to demonstrate that he or she can function in the community. The history of probation goes back to the 14th century, when
offenders could be entrusted to the custody of willing citizens to perform a variety of tasks. The founding father of probation is said to be John
Augustus, who attended criminal court proceedings during the 1850s and took selected offenders into his home so that they might avoid
prison. The city of Boston had hired a probation officer by 1878, other cities and states followed suit, and all states had adopted probation
legislation by 1925. The National Probation Act, passed in 1925, authorized federal district court judges to hire probation officers as well
(Cromwell, Killinger, Kerper, & Walker, 1985).
A major finding of past presidential commissions has been that the earlier and deeper an offender goes into the juvenile justice system, the
more difficult it is for him or her to get out successfully. Unnecessary commitments to correctional institutions often result in “criminalized”
juveniles. The revolving door of delinquency and criminality is perpetuated as a result. The fact that there may be a short-term benefit from
temporarily removing some juveniles from society should be tempered with the realization that, once released, some juveniles are more likely
to jeopardize the community than if they had been processed under adequate probation services in the community where they must eventually
prove themselves anyway. Because the goal of the juvenile court is therapeutic rather than punitive, probation is clearly in accord with the
philosophy of the court. When circumstances warrant probation, when the juveniles for whom probation is a viable alternative are carefully
selected, and when adequate supervision by probation officers is available, probation seems to have potential for success. Failure to take proper
precautions in any of these areas, however, jeopardizes chances of success and adds to the criticism of probation as an alternative that coddles
Probation is clearly the most frequent disposition handed down by juvenile court judges, accounting for more than 90% of all dispositions in
some jurisdictions. Despite pressures exerted by the mass media (in the form of coverage of some exceptionally disturbing offenses committed
by probationers), juvenile court judges have generally adopted the philosophy that a juvenile delinquent will usually benefit more from
remaining with his or her family or under the custody of other designated persons in the community than from being incarcerated.
In making a disposition, the juvenile court judge traditionally places heavy emphasis on the current offense; the preferences of the complainant;
and the juvenile’s prior legal history, family background, personal history, peer associates, school record, home, and neighborhood. In addition,
consideration is given to whether justice would be best served by granting probation or whether incarceration is necessary for the protection of
the public. There are a multitude of other factors considered by judges, including the juvenile’s attitude toward the offense and whether the
juvenile participated in the offense in a principal or secondary capacity. The degree of aggravation and premeditation, as well as mitigating
circumstances, is also considered. This information is provided to the judge in the social background investigation (also known as the social
summary report or predisposition report).
Once probation has been granted, certain terms and conditions are imposed on the probationer. Within broad limits, these terms and conditions
are left to the discretion of the judge and/or probation officer. The requirements that the probationer obey all laws of the land, attend school on
a regular basis, avoid associating with criminals and other persons of ill repute, remain within the jurisdiction, and report regularly to the
probation officer for counseling and supervision are general terms and conditions usually imposed by statutory decree. Other requirements that
the court may impose include curfews, drug testing, counseling, community service, and restorative justice programming. Although the court
has broad discretion in imposing the terms and conditions of probation, these terms and conditions must be reasonable and relevant to the
offense for which probation is being granted. For example, in People v. Dominguez (1967), a condition that the female defendant could not
become pregnant while unmarried was not considered to be related to the robbery for which she was adjudicated delinquent. The appellate
court reasoned that a possible pregnancy had no reasonable relationship to future criminality. In Jones v. Commonwealth (1946), an order of a
juvenile court requiring regular attendance at Sunday school and church was held to be unconstitutional because “no civil authority has the
right to require anyone to accept or reject any religious belief or to contribute any support thereto.” However, a condition of probation that
requires a defendant to pay costs or make restitution is generally upheld provided that the amounts ordered to be paid are not excessive in view
of the financial condition of the defendant. Any condition that cannot reasonably be fulfilled within the period fixed by the court is not likely to
The importance of adhering to the terms and conditions of probation is stressed because violations constitute a basis for revocation of
probation and the imposition or execution of the sentence that could have been given originally by the judge. There are generally three types
of violations: (1) technical, (2) rearrest for a new crime or act of delinquency, and (3) absconding or fleeing jurisdiction. A technical violation
is usually characterized by the probationer flagrantly ignoring the terms or conditions of probation but not actually committing a new act of
delinquency. For example, deliberately associating with delinquent peers might lead to revocation if such behavior was prohibited as a
condition of probation. Typically, technical violations include minor infractions on behalf of the probationer. Technical violations are generally
worked out between the probationer and probation officer, and they usually do not result in revocation action unless the probationer develops a
complete disregard for the terms or conditions of probation. A rearrest or new custody action due to a new act of delinquency is obviously a
serious breach of probation. The seriousness of the new act of delinquency is important in determining whether revocation proceedings will be
initiated. Most rearrests are viewed by probation officers as serious and usually result in the revocation of probation, although there is some
room for discretion. Although absconding or fleeing the juvenile court’s jurisdiction may be considered a technical violation, it is generally
considered separately and may result in revocation action.
Release on probation is conditional (i.e., probation as conditional release)—that is, the liberty of the probationer is not absolute but rather
subject to the terms and conditions being met. Although the probation officer may seek a revocation of probation, the court will ultimately
determine whether to revoke probation. When juveniles violate the conditions of supervised release and face revocation of probation, issues of
due process with respect to right to counsel and standard of proof arise. In Morrissey v. Brewer (1972), the U.S. Supreme Court held that
although a parole revocation proceeding is not a part of the criminal prosecution, the potential loss of liberty involved is nevertheless
significant enough to entitle the parolee to due process of law. First, the Court held that the parolee is entitled to a preliminary hearing to
determine whether there is probable cause to believe that a violation of a condition has occurred. Second, an impartial examiner will conduct
the hearing. Finally, notice of the alleged violation, purpose of the hearing, disclosure of evidence to be used against the parolee, opportunity to
present evidence on the parolee’s own behalf, and limited right to cross-examination are allowed under due process. Subsequently, in Gagnon
v. Scarpelli (1973), concerning the issue of probation revocation proceedings, the Court held that a probationer was entitled to the same
procedural safeguards announced in Morrissey v. Brewer (1972), including requested counsel. Previously, in Mempa v. Rhay (1967), the Court
held that when the petitioner had been placed on probation and his sentence deferred, he was entitled by due process of law to the right to
counsel in a subsequent revocation proceeding because the revocation proceeding was a continuation of the sentencing process and, therefore,
the criminal prosecution itself. Most courts, in the absence of statute, have held that the probation violation need be established only by a
preponderance of the evidence even if the violation is itself an offense.
There are several dispositions available in revocation hearings. If the charges are vacated, the probationer may be restored to probation or the
conditions may be altered, may be amended, or may even remain the same. The revocation may be granted with a new disposition generally
resulting in an intermediate sanction or a commitment to a juvenile correctional institution. The juvenile may also be sentenced to a treatment
center if the revocation was due to behavior requiring treatment such as drug or alcohol abuse.
Although the length of probation varies among states, the maximum term of probation for the juvenile is usually not beyond the maximum
jurisdiction of the juvenile court. Most terms of juvenile probation are between 6 months and 1 year, with possible extensions in most states.
Probation dispositions are usually indeterminate, leaving the release date up to the discretion of the probation officer. On successful completion
of the probation period, or on the recommendation of the probation officer for early discharge, termination of probation releases the juvenile
from the court’s jurisdiction.
Although probation serves the purpose of keeping the juvenile in the community while rehabilitation attempts are being made, there are some
potential dangers built into this disposition. Learning and labeling theories indicate that proper supervision of probationers is essential if
rehabilitation is to occur. Otherwise, the juvenile placed on probation may immediately return to the “old gang” or behavior patterns that
initially led to his or her adjudication as delinquent.
Similarly, the juvenile placed on probation, while remaining with his or her family, may end up in the same negative circumstances that
initially led to delinquent behavior except that he or she has now been labeled and is, more or less, “expected” to misbehave. The labeling
process may exaggerate problems in family, school, and peer relations, and the juvenile may find it difficult to meet the expectations
established for him or her. In many cases, the only positive role model available is the probation officer, whose caseload may preclude seeing
the juvenile for more than a few minutes a week.
To remedy the problems of limited probation officer time and lack of sufficient supervision of the probationer, several strategies are employed.
The first of these is electronic monitoring, which uses technology to track the whereabouts of the probationer. A bracelet is placed on the wrist
or ankle of the juvenile in question, and his or her whereabouts can be determined by signals transmitted and picked up by a receiver
maintained by the probation officer. In some cases, the juvenile is placed under house arrest for a specified period; in other cases, the juvenile
may be allowed to go to school or work but must be home during certain hours. A second strategy involves intensive supervision, which is
usually reserved for juveniles facing their last chance before incarceration. Probation officers working in intensive supervision programs have
limited caseloads, make frequent contacts with their charges, make contacts with the families of the probationers, contact school authorities
and/or employers periodically, work with clients at times other than normal working hours, and keep extensive records of their contacts. They
typically review the conditions of probation regularly and adjust them as needed. A third strategy involves the use of day reporting centers
(DRCs) (in combination with the two strategies discussed previously or by itself). DRCs provide highly structured, nonresidential programs for
series juvenile offenders. They offer a wide range of services such as educational or GED classes, drug and alcohol treatment, conflict
resolution, life-skills training, and anger management, to name a few. The offender is required to report to the DRC daily for a specified period.
The assumptions on which these programs are based are that the probation officer as role model, supervisor, and disciplinarian will be more
effective if he or she spends more time with each client and the disposition of probation will be more effective if the client is heavily
supervised and involved in diversion programming.
Another attempt at providing better probationary services for delinquents involves contracting with private agencies. The Office of Juvenile
Justice and Delinquency Prevention (OJJDP) and other state and local agencies have contracted with private organizations to provide services
(e.g., counseling, job readiness skills, and wilderness programs) for probationers to supplement the public services provided. The American
Correctional Association (2012) supports the use of private services in its policies, maintaining that the government is ultimately responsible
for corrections and should use all resources available to accomplish the goals of corrections. In 2004, the OJJDP (2004a) reported that there are
more privately run secure and treatment facilities for juveniles than public facilities, although public facilities hold the majority of juveniles.
“In 2010, private facilities accounted for 51% of facilities holding juvenile offenders; however, they held just 31% of juvenile offenders in
residential placement” (Hockenberry, 2013, p. 3). In 1999, the American Correctional Association conducted a survey concerning private
sector involvement in juvenile corrections. The survey revealed that 46 jurisdictions indicated they had at least one active private-sector
contract. The main reason given for such a contract was that private-sector vendors could provide services and expertise that were lacking in
the jurisdictions in question (Levinson & Chase, 2000).
One more addition to probation services has been restorative justice practices. Restorative justice (see Chapter 10) is a philosophy that has been
adopted by juvenile courts as a supplement to probation services. The roots of restorative justice can be traced to 1974 in Ontario, Canada. The
Mennonite Central Committee, through the help of a probation officer, created the first mediation program involving the basic principles of
restorative justice. This program, called a victim–offender reconciliation program, used the payment of restitution directly to the victim by
the offender as its core. Traditionally, payment of restitution to the victim was handled directly by the probation office in an impersonal
manner. By forcing the offender to pay the restitution directly to the victim, the process was construed as a repayment for loss and damages to
an individual rather than a state-mandated court fine for a harm done to the state. The success of this program initiated interest in restorative
justice in the United States and in other parts of Canada.
Elkhart, Indiana, was the first U.S. city to initiate a victim–offender mediation program during the late 1970s. As the philosophy grew, a
nonprofit organization called the Center for Community Justice, based on the restorative justice philosophy, was created in 1979. Since the
1980s, restorative justice has been called by a variety of different names depending on the agency applying its concepts. Although the name
may change, the definition and core concepts of restorative justice—accountability, competency, and public safety—remain the same in all
First, accountability in restorative justice is used to explain how offenders are to respond to the harm they have caused to victims and the
community. Accountability requires that offenders take personal responsibility for their actions, face those they have harmed, and take steps to
repair harm by making amends. Much of the literature regarding restorative justice calls this process “making things right” or “repairing the
harm” (Center for Restorative Justice and Mediation, 1996; Restorative Justice for Illinois, 1999). In one state example, Illinois has used the
restorative justice philosophy in its juvenile court since 1999 and has been implementing restorative justice programming across the state. As
noted in Figure 11.1, many of the programs, discussed shortly, focus on accountability as well as other restorative justice approaches.
Second, restorative justice requires competency on behalf of offenders. Competency is not the mere absence of bad behavior; it is the provision
of resources for persons to make measurable gains in educational, vocational, social, civic, and other abilities that enhance their capacity to
function as productive citizens (Bazemore & Day, 1996; Restorative Justice for Illinois, 1999). Restorative justice suggests that programs be
designed to promote empathy in offenders, to teach effective communication skills to offenders, and to develop conflict resolution skills in
offenders. Programs such as victims of crime impact panels (VCIPs), victim–offender mediation programs, and programs sponsored by
community-run self-help groups such as Mothers Against Drunk Driving (MADD) strive to teach competency to offenders. One competency
program is being used in southeast Missouri for juvenile offenders. This program uses a VCIP to increase empathy levels in juvenile offenders
by asking victims of crime to tell offenders how the crimes have affected their lives. MADD offers a similar program by using victim impact
panels to build empathy in offenders of drunk driving.
Figure 11.1 Restorative Justice Practices From Illinois
Source: Illinois Balanced and Restorative Justice Initiative (n.d.).
Public safety is the third area of restorative justice. “Public safety is a balanced strategy that cultivates new relationships with schools,
employers, community groups, and social agencies” (Restorative Justice for Illinois, 1999, p. 1). Public safety also facilitates new relationships
with victims. “The balanced strategy of restorative justice invests heavily in strengthening a community’s capacity to prevent and control
crime” (Bazemore & Day, 1996, p. 7). The concept of public safety relies heavily on the community. The community, according to restorative
justice, should make sure of the following:
The laws which guide citizens’ behaviors are carried out in ways which are responsive to our different cultures and backgrounds—
whether racial, ethnic, geographic, religious, economic, age, abilities, family status, sexual orientation, and other backgrounds—and
all are given equal protection and due process. (Center for Restorative Justice and Mediation, 1985, p. 1)
Restorative justice also proclaims that crime control is not the sole responsibility of the criminal justice system but rather is the responsibility
of the members of the community. Sentencing circles, reparative boards, and citizen councils are examples of the public safety concept in
Reducing recidivism is typically the baseline for showing that a program is effective. In a review of restorative justice programs, Umbreit, Vos,
and Coates (2006) found that reports examining recidivism rates after victim–offender mediation and group circles have been mixed.
Rodriguez (2007) found that juveniles in a restorative justice program in Maricopa County, Arizona, were less likely to recidivate than
juveniles in the comparison group when controlling for legal and extralegal factors. Hayes and Daly (2003) reported that those juveniles who
believe that the reparation plan is arrived at in consensus instead of being forced on them are less likely to reoffend than are those who do not.
Studies on restorative justice have been plagued by methodological and quality issues, thus it’s difficult to compare results across studies or to
say that restorative justice is completely effective in reducing recidivism, as discussed in Chapter 10 (Bradshaw & Roseborough, 2005).
The participants in a balanced and restorative justice system are crime victims, offenders, and the community. Crime victims are essential to
the success of the restorative justice process because they are involved in the healing and reintegration of the offenders and themselves. Crime
victims receive support, assistance, compensation, and restitution. The offenders participating in restorative justice programs provide
repayment to their communities and are provided with work experience and social skills necessary to improve decision making and citizen
productivity. The community is involved by providing support to both the offenders and crime victims. The community provides individuals,
besides criminal justice personnel, to act as mentors to the offenders and provides employment opportunities for the offenders.
Of late, a popular program has emerged that focuses on highly structured, community-based programming for serious juvenile offenders on
“last chance” probation or those reentering society. Mentioned earlier, this program is known as day treatment centers or DRCs. At DRCs,
youth attend treatment and educational classes in an …
9 Key Figures in Juvenile Court Proceedings
Chapter Learning Objectives
On completion of this chapter, students should be able to do the following:
Explain the roles of the prosecutor, defense counsel, judge, and probation officer in juvenile
Discuss differences between private and state-appointed defense counsel
Discuss conflicting views of the relationship between the prosecutor and defense counsel
Explain plea bargaining
Discuss the roles of child and family services and court-appointed advocates in juvenile court
What Would You Do?
Bill has been a juvenile probation officer for over 11 years. On his caseload is a 15-year-old teen
by the name of Malik who lives in an area of the city where the school system and surrounding
community is infested with gang activity and drug selling. He comes from a challenged family
life for his father is in prison and his mother works two jobs so she can scrape up enough to make
it from month to month. He has two older brothers and several cousins who are members of an
area gang, and his sister is currently dating a gang banger. Malik also has a younger brother and
sister, ages 10 and 8, whom he takes care of when they come home from school.
Bill does not really see any way out for Malik and, from the looks of it, has determined that it is
only by luck that Malik has not yet been brought into the gang family. Bill recalls talking with
Malik’s mother, KiKi, who did not know how she could continue to keep him from rubbing
shoulders with gang members. Bill remembers the conversation:
Bill: “You know, KiKi, it is just a matter of time until he is bangin’ with the rest of them . . . the
only thing that will prevent this is if he does not stay in this area . . . even then, he could still join
some other set in another area of this or some other city.”
KiKi: “I know, but I don’t have anywhere to go and we cannot afford to move. I don’t have the
money to move and start all over.”
Bill: “I don’t know what kind of assistance there might be . . . what if you placed him some place
where he would have structure and be away from all the gang influence?”
KiKi: “I really just don’t know what to do . . . if I have him placed in a residential facility, he will
hate me for it. But there ain’t nothing but bad news here, and I can’t get him to stay home when I
am at work at night. . . . I don’t know what to do.”
Bill thought about that conversation that happened just 3 days ago and then thought about
Malik’s upcoming court date. Malik was caught smoking “purple” or “purp,” as it is sometimes
called. As everyone on the streets knows, purp is a highly potent form of cannabis, not the typical
“reggie” or regular pot that most people smoke. In addition, Malik was found “hanging out” or
loitering around a business well after the store had closed. Bill, of course, thinks that it was
Malik’s intent to case the store and, perhaps, break in.
Currently, Malik is doing well enough in school. He also appears to have some latent potential
that is going untapped. Malik is surrounded by a number of negative and high-risk circumstances
and does not have enough protective factors to keep him within a safe zone of behavior.
Bill thinks that Malik needs to be removed from the home to a more stable environment and has
talked to the county child and family services agency about this. Bill has also talked with a
supervisor of the Court-Appointed Special Advocate (CASA) program just to see about support
that might be available for Malik.
Bill will need to make a recommendation to the judge to either have Malik placed in a residential
facility for a few months to get him away from the noxious environmental influences or to allow
Malik to continue staying with his mother, who cares about Malik but is not able to keep him in
compliance with his community supervision requirements.
What complicates Bill’s decision is that the judge who presides over this case is more of a
“lawgiver” rather than a “parent figure” with juveniles. Bill knows that to move Malik will leave
nobody at home to take care of his younger brother and sister. Then again, he tells himself that he
cannot allow Malik to stay at home to fulfill day care needs after school for his mother. Further,
this would also overlook potential treatment options within the community.
Bill considers the reasonableness of any recommendations that he might provide, while the
state’s child protection services agency attorney considers various options that can be requested
of the judge. Meanwhile, Bill weighs both potential recommendations.
What Would You Do?
1. Do you think Bill should recommend that Malik be sent to a residential home or be given
more intensive probation and treatment programming while staying at home?
2. Should Bill attempt to find assistance for Malik’s mother, KiKi?
One of the alternatives available to the police in dealing with juvenile offenders or
adults who commit offenses against children involves official action through the juvenile
justice network or, in the case of adult perpetrators, the adult justice network. Once the
decision to take official action has been made, juvenile court personnel become involved
in the case. We use the term juvenile court personnel in a broad sense to include the
prosecutor, defense counsel, judge, juvenile probation officer, and (in abuse and neglect
cases) representatives from the department of children and family services (also known
as child protective services, or CPS).
The final decision about whether a juvenile will be dealt with in juvenile court rests with
the prosecutor. Regardless of the source of the referral (e.g., police officer, teacher,
parent), the prosecutor may decide not to take the case to court and, for all practical
purposes, no further official action may be taken on the case in question. The prosecutor,
then, exercises an enormous amount of discretion in the juvenile (and adult) justice
system (Stuckey, Roberson, & Wallace, 2004). Although the police officer may “open
the gate” to the juvenile justice system, the prosecutor may close that gate. The
prosecutor may do this without accounting for his or her reasons to anyone else in the
system (except, of course, to the voters who elect the prosecutor to office, with the next
election often occurring long after the case in question has been dismissed).
Clearly, there are some circumstances under which the prosecutor would be foolish to
proceed with court action. For example, lack of evidence, lack of probable cause, or lack
of due process may make it virtually impossible to prosecute a case successfully. There
are, however, a number of somewhat less legitimate reasons for failure to prosecute.
There have been instances where prosecutors have failed to take cases to court for
political or personal reasons (e.g., when the juvenile in question is the son or daughter of
a powerful and influential citizen) or because the caseload of the prosecutor includes an
important or serious case in which successful prosecution will result in favorable
publicity. As a result, the prosecutor may screen out or dismiss a number of “less
serious” cases such as burglary and assault (Neubauer & Fradella, 2013). In short, the
prosecutor is the key figure in the justice system and is recognized as such by both
defendants and defense counsel (Ellis & Sowers, 2001, p. 40; Laub & MacMurray,
1987; Mays & Winfree, 2000).
During recent years, however, the prosecutor has lost some discretion historically
afforded to him or her because of discretionary controls enacted within state legislation.
These controls have been designed to decrease the amount of discretion a prosecutor has
in determining whether a case remains in the jurisdiction of the juvenile court or is
waived to adult court. In Illinois, for example, it is mandated that the prosecutor request
to transfer a juvenile to adult court if the child is 15 years of age or over, commits an act
that is a forcible felony, and has previously been adjudicated delinquent or committed
the act in conjunction with gang-based activity (Illinois Compiled Statutes [ILCS], ch.
705, sec. 405/5-805, 1999). There are also presumptive transfers that deal with violence
involving firearms and other clearly stated legislative policies on when prosecutors may
use their discretion to transfer juveniles to adult criminal court. The discretionary
controls have not been designed to take away from the prosecutor’s role in court or to
undermine the duties placed on the prosecutor but rather are in place to ensure that the
prosecutor is not abusing the position and power given to him or her by the court
system. The discretionary controls are also a political response to the public’s recent
outcries against juvenile violence. Despite the discretionary controls, prosecutors are
still key figures in the juvenile court system (Backstrom & Walker, 2006; Neubauer &
Fradella, 2013; Viljoen, Klaver, & Roesch, 2005).
The prosecutor’s key role in the American juvenile justice system has emerged slowly
over time. Initially, the prosecutor or state’s attorney was seen as both unnecessary
and harmful in juvenile court proceedings that were supposedly nonadversarial
proceedings “on behalf of the juvenile” (U.S. Department of Justice, 1973). The Gault
(In re Gault, 1967) decision, along with the decisions in Kent (Kent v. United States,
1966) and Winship (In re Winship, 1970), brought about a number of changes in juvenile
court proceedings. Among these changes was a growing recognition of the need for
legally trained individuals to represent both the state and the juvenile (and, in some
instances, the juvenile’s parents) at all stages of juvenile justice proceedings. The need
resulted from increased emphasis on procedural requirements and the adversarial nature
of the proceedings.
Today the prosecutor is a key figure in juvenile justice because he or she determines
whether a case will go to court, most waiver decisions, the nature of the petition, and (to
a large extent) the disposition of the case after adjudication (the judge seldom imposes
more severe punishment than is recommended by the prosecutor). Siegel & Welsh
(2007) noted that it is likely that the prosecutor will continue to play a primary role in
the juvenile justice system due to the constitutional safeguards provided to youthful
offenders and to the publicity associated with juvenile crime.
In addition, there is a tendency on the part of some prosecutors to impose unofficial
probation. The prosecutor indicates that he or she has a prosecutable case but also
indicates that prosecution will be withheld if the suspect in question agrees to behave
according to certain guidelines. These are often the same guidelines handed down by
probation officers subsequent to an adjudication of delinquent, abused, or neglected.
This amounts to a form of continuance under supervision without proving the charges in
court and may result from an admission of the facts by the minor or a lack of objection
to this procedure by the minor, his or her parents, and legal counsel. In essence, this
procedure provides an alternative to official adjudication as a delinquent and is regarded
as beneficial in that sense. However, although the use of unofficial probation is clearly
beneficial to the prosecutor because it eliminates the need to prepare a case for court and
may be beneficial for the juvenile court by reducing the number of official cases,
unofficial probation has the same potential disadvantages as do informal adjustments by
the police. In short, unofficial probation imposed by the prosecutor amounts to
punishment without trial, and the voluntary nature of this probation is highly
questionable. Informal agreements may also work to the disadvantage of juveniles who
are suspected of being abused or neglected and who are allowed to remain in their
homes as a result of such agreements.
The building above has multiple courtrooms where juvenile cases are routinely
heard. This building includes a detention facility where youth are housed.
Courtesy of the authors
However, Backstrom and Walker (2006) noted that the role of juvenile prosecutors,
while still being that of a gatekeeper, requires much more than this in order to address
the complexity of juvenile crime today. They noted that greater expertise is essential if
prosecutors are to address violent crimes committed by juveniles, new laws dealing with
victims’ rights, the transfer of youth to adult court, as well as the expanded jurisdiction
of the juvenile court. According to Backstrom and Walker (2006), “Today’s juvenile
prosecutor must not only serve as an advocate for justice, for the victim, and for
community values, he or she must also serve as a negotiator and dispositional advisor in
juvenile cases” (p. 965). It is important to understand that, whereas juvenile prosecutors
do hold the key position in determining if a case will be heard in juvenile court, these
court professionals do see different types of crimes and different youth on a routine
basis; it becomes clear to them that not all juvenile offenders are the same. Indeed, just
as our What Would You Do? feature demonstrated with Bill (the probation officer) and
Malik, the probationer, there are a number of factors that may aggravate or mitigate a
case. Even the prosecutors of these crimes realize this and, during plea bargaining, these
prosecutors may modify their original charges to reflect these circumstances.
Regardless of the specific parameters of each case and the offenders involved, the
attorney for the state (prosecutor) participates in every proceeding of every stage of
every case that is under the jurisdiction of the family court, whenever the state has an
interest. Figure 9.1 provides an overview of the process by which prosecutors may
determine if a juvenile case will be formally charged within the juvenile court system.
The Institute of Justice Administration (IJA) and the American Bar Association (ABA)
(1980a) described the responsibility of the legal profession to the juvenile court in
Standard 2.3 of Standards Relating to Counsel for Private Parties. The IJA and ABA
stated that legal representation should be provided in all proceedings arising from, or
related to, a delinquency or in need of supervision action—including mental
competency, transfer, postdisposition, probation revocation and classification,
institutional transfer, and disciplinary or other administrative proceedings related to the
treatment process—that may substantially affect the juvenile’s custody, status, or course
Figure 9.1 Steps and Timelines for Engaging the Formal Juvenile Court System
Source: National Council of Juvenile and Family Court Judges (2005).
Juvenile court proceedings involving delinquency and abuse are adversarial in nature in
spite of the intent of the early developers of juvenile court philosophy. It is for this
reason that the role of defense counsel (the attorney representing the defendant) has
become increasingly important. Today, in most jurisdictions, all juveniles named in
petitions are represented by counsel. In Illinois, for example, no proceeding under the
state’s juvenile court act may be initiated unless the juvenile is represented by counsel
(ILCS, ch. 705, sec. 405/1–5, 1999). In many cases, the juvenile’s parents also have
legal representation. In some cases, a guardian ad litem may be appointed by the court.
The guardian ad litem is a person appointed by the court as a third party to protect the
interests of the child both in court and while placed in social services (Davidson, 1981).
In general, the guardian ad litem is used in abuse, neglect, and dependency cases where
the minor is in need of representation because of immaturity (Sedlak, Doueck, Lyons, &
Wells, 2005; Siegel & Welsh, 2007).
There are two basic categories of defense counsel: (1) private counsel and (2) court-
appointed counsel. Private counselors are sometimes retained or appointed to represent
the interests of juveniles in court. Frequently, however, juveniles are represented by
court-appointed counsel (attorneys or public defenders). The former are typically drawn
from a roster of practicing attorneys in the jurisdiction, whereas the latter are full-time
salaried employees. Both are paid by the county or state (or by both) to represent
defendants who do not have the money to retain private counsel. For many young
lawyers interested in criminal law, the position of public defender represents a stepping-
stone (Neubauer & Fradella, 2013). In most areas, the public defender is paid a
relatively low salary, but the position guarantees a minimal income that can be
supplemented by private practice (Stuckey et al., 2004). For example, the most recent
information available on defense systems for the indigent found that the average cost per
case to state and local government for indigent defense was $5.37 per capita, ranging
from a low of $0.11 per case in West Virginia to a high of $11.23 per case in Alaska
(Barlow, 2000, p. 374).
In addition to the low personal pay, many public defender programs are inadequately
funded (National Juvenile Defense Center, 2016; Wice, 2005). This makes the job of
public defenders even more difficult because, in addition to being underpaid personally,
they must work with fewer agency resources at their disposal (Wice, 2005). This low
pay and inadequate agency funding have led to a reputation of providing low-quality
representation (Neubauer & Fradella, 2013; Wice, 2005) that is further compounded by
the fact that, understandably, many public defenders have short job tenures. These
factors have contributed to a public image of ineptness that has become a virtual stigma
for persons working in the role of public defender (Botch, 2006; Wice, 2005).
As a rule, public defender caseloads are heavy, investigative resources are limited, and
many clients are, by their own admission, guilty or delinquent (Barlow, 2000; Stuckey et
al., 2004). The public defender, therefore, spends a great deal of time negotiating pleas
and often very little time talking with clients. In fact, sometimes a public defender in
juvenile court will indicate to the judge that he or she is ready to proceed and then ask
someone in the courtroom which of the several juveniles present is the client. As a
result, public defenders often enjoy a less-than-favorable image among their clients
(Barlow, 2000, pp. 377–379).
Some public defenders seem to have little interest in using every possible strategy to
defend their clients (Botch, 2006; “Too Poor,” 1998; Wice, 2005). On occasion,
prosecutors and juvenile court judges make legal errors to which public defenders raise
no objections. Appeals initiated by public defenders in cases tried in juvenile court are
relatively rare even when the chances of successful appeals seem to be good. There are
also public defenders who pursue their clients’ interests with all possible vigor, but on
the whole it appears that juveniles who have private counsel often fare better in juvenile
court than do those who are represented by public defenders. There is little doubt that
the office of public defender is frequently underfunded and that such underfunding is a
major factor in most of the criticisms leveled at the office.
In response to the insufficient nature of the public defender system that is used in
juvenile courts, the National Juvenile Defender Center (2016) has provided a series of
recommendations. The NJDC notes that specific attention should be given to
establishing a productive and realistic means for beginning lawyers to establish
opportunities that might make juvenile defense a viable career choice. In particular, the
NJDC recommends the following:
1. Support the expansion of public and private law school clinical and experiential
2. Engage historically black colleges and universities, Latino serving institutions of
higher education, and Native American colleges and universities.
3. Establish dedicated juvenile defense committees in bar associations.
4. Expand legal incubator programs to promote juvenile defense.
Although these recommendations might seem a bit unusual, the NJDC (2016) provides
numerous examples of how these recommendations might work and/or how they have
already been implemented in certain areas of the nation. The key point to noting the
work of the NJDC is to showcase that the challenges associated with gaining defense
counsel for juveniles are well known and understood by scholars, practitioners, and
organizations associated with the court system. Unfortunately, the means by which these
issues can be remedied are, perhaps, much more difficult to discern.
Whether defense counsel is private or public, his or her duties remain essentially the
same. These duties are to see that the client is properly represented at all stages of the
system, that the client’s rights are not violated, and that the client’s case is presented in
the most favorable light possible regardless of the client’s involvement in delinquent or
criminal activity (Pollock, 1994, pp. 145–152). To accomplish these goals, the defense
counsel is expected to battle the prosecutor, at least in theory, in adversarial proceedings.
However, the quality of representation afforded is not guaranteed. The public defender’s
office is frequently understaffed, and private counsel is often too expensive to be
considered an option. As Siegel and Senna (1994) noted, “Representation should be
upgraded in all areas of the juvenile court system” (p. 557).
Relationship Between the Prosecutor and Defense
Counsel: Adversarial or Cooperative?
In theory, adversarial proceedings result when the “champion” of the defendant (defense
counsel) and the “champion” of the state (prosecutor) do “battle” in open court, where
the “truth” is determined and “justice” is the result. In practice, the situation is quite
often different due to considerations of time and money on behalf of both the state and
the defendant (Stuckey et al., 2004).
The ideal of adversarial proceedings is perhaps most closely realized when a well-
known private defense attorney does battle with the prosecutor. The O. J. Simpson case
of the 1990s is an excellent example (Bugliosi, 1997). Prominent defense attorneys often
have competent investigative staffs and considerable resources in terms of time and
money to devote to a case. Thus, the balance of power between the state and the
defendant may be nearly even. This is generally not the case when defense counsel is a
public defender who is often paid less than the prosecutor, often has less experience than
the prosecutor, and generally has more limited access to an investigative staff than the
prosecutor. For a variety of reasons, then, both defense counsel and the prosecutor may
find it easier to negotiate a particular case rather than to fight it out in court because
court cases are costly in terms of both time and money. The vast majority of adult
criminal cases in the United States are settled by plea bargaining. A substantial
proportion of delinquency and abuse and neglect cases are disposed of in this way as
well. In fact, it has been suggested that justice in the United States is not the result of the
adversarial system but rather the result of a cooperative network of routine interactions
among defense counsel, the prosecutor, the defendant, and (in many instances) the judge
(Barlow, 2000, p. 349; Blumberg, 1967; Sudnow, 1965).
In plea bargaining, both the prosecutor and defense counsel hope to gain through
compromise (Neubauer & Fradella, 2013; Viljoen et al., 2005). The prosecutor wants the
defendant to plead guilty—if not to the original charge, then to some less serious
offense. Defense counsel seeks to get the best deal possible for his or her client, and this
may range from an outright dismissal to a plea of guilty to some offense less serious
than the original charge (Neubauer & Fradella, 2013). The nature of the compromise
depends on conditions such as the strength of the prosecutor’s case and the seriousness
of the offense. Most often, the two counselors arrive at what both consider a “just”
compromise, which is then presented to the defendant to accept or reject (Siegel, Welsh,
& Senna, 2003). As a rule, the punishment to be recommended by the prosecutor is also
negotiated. Thus, the nature of the charges, the plea, and the punishment are negotiated
and agreed on before the defendant actually enters the courtroom. The adversarial
system, in its ideal form at least, has been circumvented (Edwards, 2005; Stuckey et al.,
2004). Perhaps a hypothetical example will help to clarify the nature and consequences
of plea bargaining.
Consider Joe, a house burglar, who is seen breaking into a house. The break-in is
reported to the police, who apprehend Joe in the house with a watch and some expensive
jewelry belonging to the homeowner. The police decide to take official action. Because
Joe is over 13 years of age and the offense is fairly serious, the prosecutor threatens to
prosecute Joe as an adult in adult court. She also indicates that she intends to seek a
prison sentence for Joe. Joe’s attorney, realizing that the prosecutor has a strong case,
knows that he cannot get Joe’s case dismissed. He argues with the prosecutor that this is
Joe’s first appearance before the juvenile court and that Joe is, after all, a juvenile. After
some discussion, the prosecutor agrees to prosecute Joe in juvenile court provided that
the allegation of delinquency is not contested. Joe’s attorney agrees provided that the
prosecutor recommends only a short stay in a private detention facility in the
community. Joe’s attorney then presents the deal to Joe and perhaps to Joe’s parents,
indicating that it is the best he can do and recommending that Joe accept because he
could be found guilty and sentenced to prison if he is tried in adult court. Joe accepts
and the bargain is concluded. The case has been settled in the attorney’s offices. All that
remains is to make it official during the formal court appearance. Most judges will
concur with the negotiated plea.
The benefits of plea bargaining to the prosecutor, defense counsel, and the juvenile court
are clear. The prosecutor is successful in prosecuting a case (she obtains an adjudication
of delinquency), defense counsel has reduced the charges and penalty against his client,
and all parties have saved time and money by not contesting the case in court. The
juvenile may benefit as well given that he might have been convicted of burglary in
adult court (if the judge had accepted the prosecutor’s motion to change jurisdiction) and
ended up in prison with a felony record. The dangers of plea bargaining, however,
should not be overlooked. First, there is always the possibility that the motion to change
jurisdiction might have been denied. Second, Joe might have been found not guilty even
if he had been tried in adult court or might have been found not delinquent if his case
had been heard in juvenile court. Third, because negotiations most often occur in secret,
there is a danger that the constitutional rights of the defendant might not be stringently
upheld. For example, Joe did not have the chance to confront and cross-examine his
accusers. Finally, the juvenile court judge is little more than a figurehead, left only to
sanction the bargain, in cases settled by plea bargaining. The juvenile court judge has
the responsibility to see that the hearings are conducted in the best interests of both the
juvenile and society and has the responsibility to ensure due process. Neither of these
can be guaranteed in cases involving plea bargaining. A final concern in all plea
bargaining processes, whether adult or juvenile, is that the victim seldom feels good
about the bargain.
Juvenile Court Judge
Theoretically, the juvenile court judge is the most powerful and central figure in the
juvenile justice system, although he or she does not always exercise this power
(Edwards, 2005). Noting that this is theoretically the case in the courthouse underlies the
fact that there are many actors who are involved within the courtroom work group that
processes a juvenile case (Edwards, 2005; Neubauer & Fradella, 2013). This courtroom
work group tends to develop a sense of shared informal norms and understandings, with
a strong organizational emphasis being placed on effective case processing (Neubauer &
Fradella, 2013; Viljoen et al., 2005). Indeed, there will be the typical members of the
adult courtroom work group; however, the juvenile court will also typically rely heavily
on professional judgments of nonlawyers in assessing both the background of the
juvenile and other circumstances such as the quality of family supervision (Hanser,
2007a; Viljoen et al., 2005). In many cases, the input of various mental health workers
may weigh heavily in the judge’s decision (Hanser, 2007a; Viljoen et al., 2005).
In the end, however, it is the juvenile court judge who decides whether a juvenile will be