according to inflexible rules of law.”18 This led judges to make individualized determinations,
based on the facts of each case, and led judges away from a strict application of legal standards.19
The system’s purpose was chiefly reformative because the Progressives believed that a specific
criminal offense did not tell the child’s whole story; in other words, their goal was to determine
why the child was offending in the first place.20 Juvenile courts generally adhered to the core
principles of Progressive thought until the seminal U.S. Supreme Court case, In re Gault in 1967.21
B. Gradual Departure from the Progressive Approach: 1967–1980
Society’s perception of juvenile culpability during this time period can be summed up as
follows: Children may be different than adults, but they should be given many of the same due
process rights, even if the justice system does not treat them exactly the same.22 The Supreme
Court in In re Gault held that juveniles should be provided many of the same procedural safeguards
guaranteed to adults because the Progressive ideal of discretionary individualized treatment was
no longer adequate.23 Although the Progressives’ goal was “careful, compassionate, individualized
treatment,” the Court stated that “unbridled discretion, however benevolently motivated, is
frequently a poor substitute for principle and procedure.”24 The Court limited its holding to
procedural safeguards in an adjudicatory hearing ( i.e., the actual trial in a juvenile case), declining
to address other areas where the juvenile and adult criminal system differed.25 Three years later,
the Supreme Court expanded the procedural protections afforded to juveniles, holding that the
State must establish delinquency “beyond a reasonable doubt” like in adult proceedings.26
Although In re Gault resulted in greater due process protections for juveniles in the criminal
system, it also marked the Supreme Court’s divergence from the Progressive approach, igniting
the gradual “procedural and substantive convergence of juvenile and criminal courts.”27
C. Rejection of the Progressive Approach: 1980–2004
The idea that juveniles should be treated differently than adults in the criminal system came
under attack in the 1980s.28 The general mindset can be summed up in the following: Juvenile
18 Guggenheim, supra note 14, at 465 (internal quotation marks omitted).
19 Feld, supra note 17, at 970–71. The “best interests of the child” standard was born out of this philosophy. Id.
20 Id. at 971.
21 See Gault, 387 U.S. at 28, 57.
22 ELROD & RYDER, supra note 1, at 124. Specifically, juveniles have the right to reasonable notice of charges, the
right to counsel, the right to confront and cross-examine witnesses, and the right against self-incrimination. Id.
23 Gault, 387 U.S. at 14–17.
24 Id. at 18.
25 Id. at 13.
26 In re Winship, 387 U.S. 358, 368 (1970).
27 Feld, supra note 17, at 973.
28 Scott & Steinberg, supra note 14, at 806 (“This period was . . . marked by criticism of the juvenile court and a loss
of confidence in its capacity to serve young offenders and also effectively protect the public.”); see also Marsha
Levick, et al., The Eighth Amendment Evolves: Defining Cruel and Unusual Punishment Through the Lens of
Childhood and Adolescence, 15 U. PA. J. OF L. & SOC. CHANGE 285, 288–89 (2012) (explaining how society’s mindset
changed with the rise of juvenile crime in the United States). Society drastically changed the way it viewed juveniles
charged with criminal offenses:
Convinced that the country was headed toward a generation of increasingly violent teens, legislators
quickly enacted laws that sought to ensure that youth charged with the most serious offenses would