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The Penal Model of Juvenile Justice: Is Juvenile Court Delinquency Jurisdiction Obsolete? (with Mary Keller), 52 New York University Law Review 1120 (1977)


An inability to reconcile society's need for protection from juvenile crime with the use of nonpunitive measures has troubled the juvenile justice system since its inception. Society long ago adopted a paternalistic attitude toward juvenile crime, treating such behavior not as a question of law enforcement, but as a social and psychological problem requiring therapeutic interventions and state assumption of parental rights and duties. The juvenile court was conceived as a kind of social welfare agency rather than as an instrument for the enforcement of the criminal laws. With the mantle of benevolence bestowed and in the name of "individualized treatment," the juvenile courts were given broad jurisdiction over both criminal and non-criminal misbehavior and were vested with virtually unlimited discretion to impose limitations and sanctions on a child's conduct. They were to operate a "no fault" process, geared to providing treatment and rehabilitation to children whose overt misbehavior manifested underlying problems. Juvenile court procedures were to be informal and nonadversarial, and the court was to make dispositions based on the best interests of the child.

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