Hundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA+ comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court since its founding. This Article focuses on deconstructing and reconstructing the legal definition of delinquency. Part I of this Article deconstructs the legal definition of delinquency, exposing its three essential components: (1) the explicit statutory definition of delinquency; (2) the necessary detection of such delinquency; and (3) the embedded discretion to exercise or decline court jurisdiction. Part I then explores the derivative, overbroad, and incomplete nature of the statutory definition of delinquency and examines how the three essential components of delinquency together have led to the criminalization of adolescence, environment, and otherness. This exercise of deconstructing delinquency reveals how the existing legal construct not only undermines the goals of the juvenile court, but also affirmatively targets and harms youth from historically under-resourced and marginalized communities. Part II of this Article reconstructs the legal definition of delinquency to address the current definition’s inherent flaws and mitigate the resulting deficiencies and harms that have existed since the court’s founding. First, the Article suggests changes to make the definition of delinquency more developmentally appropriate and focus the court’s jurisdiction on serious youth misbehavior. Second, the Article recommends eliminating the “pre-crime” justification for court action to further narrow the role of the court and decriminalize behavioral manifestations of poverty, trauma, and disability. Finally, the Article proposes eliminating existing exceptions to juvenile court jurisdiction baked into the definition of delinquency to combat the adultification of youth of color and make the juvenile court truly diversionary for all youth. Reconstructing delinquency in this manner should lead to a significantly smaller, more effective, and more just court, while laying the necessary foundation for realigning resources toward direct investment in youth and families prior to, and during, court involvement.

Continue reading De/Reconstructing Delinquency.

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