Six

Juvenile “Justice”

“A Kind and Just Parent”

Foster care and programs for “delinquent youth” are considered separate functions of government, often carried out by different agencies or different arms of the same agency. There are a number of similarities, however. Both emerged in their modern form during the same basic period of progressive reform. Both have roots in the bourgeois desire to repair an underclass that is potentially disruptive. Both have gone through a process of increasing racialization during the same time frame.

Programs for youthful offenders began to emerge in the United States with industrialization. Initially, children and youth were locked up for a variety of reasons, and there wasn’t necessarily an effort to differentiate criminal conduct from homelessness, vagrancy, begging, or having been abused or abandoned. New York opened its “House of Refuge” in 1825, and it eventually housed more than a thousand children at a time. Similar facilities were built in other cities.

As the nineteenth century wore on, detention for children who became public charges simply because no one could support them fell out of favor. For criminal conduct, courts and legislatures increasingly recognized an “infancy defense,” holding that very young children could not form the “guilty intent” to be held responsible for their conduct. While detention occurred, sometimes children initially detained were turned over to charities supported by the wealthy and middle classes for rehabilitation through adoption into a more wholesome environment. In some places, young offenders were sent to rural youth camps. Just as with the Orphan Trains, the assumption seemed to be that a break with the corrupt influence of the urban environment teeming with immigrants would make young people healthy, vigorous, and morally upright.

Despite the infancy defense and early reform initiatives, imprisonment of young offenders with adults continued, especially in large cities. In Chicago, for example, children younger than fourteen were housed in adult jails, and one middle-class reformer expressed her horror at seeing “quite small boys confined in the same cells with murderers, anarchists, and hardened criminals.”1 The comment reveals that mingled with the no doubt sincere concern for the safety and well-being of the boys was a fear of “contamination” by dangerous political doctrines.

Illinois established the first juvenile court in the nation in 1899, handling abuse, neglect, and delinquency. The creation of a children’s court came at the same time as the emerging field of psychology began to express the developmental theory of adolescence as a period of rebellion. The progressive vision for the court was to serve as a “kind and just parent” to help young offenders find their way to adulthood. In a variation, two early sociologists said the state should be “a sorrowing parent . . . no longer a power demanding vindication or reparation.”2

Despite the rhetoric, juvenile court never lived up to the ambitions of the middle-class Progressive reformers. They were underfunded, and tended to be staffed by patronage appointments. Because their mission was ostensibly about rehabilitation and nurturing rather than punishment, the niceties of due process—right to counsel, proof of guilt—were largely dispensed with. In practice, the facilities in which youth were detained represented less of a break with the adult penal institutions than the reformers had promised.

The courts also met resistance from parents and immigrant communities, who suspected the juvenile courts were intended to remove their children to be raised as “proper Americans.” In one case, a mob took over the Chicago Juvenile Court and briefly held its first judge prisoner.

Following World War II, greatly exaggerated media reports about increasing youth crime led to a wave of concern about juvenile delinquency. Televised Senate hearings were held in 1955, and J. Edgar Hoover warned of a “flood tide” of youth violence. A counternarrative about young predatory thugs who needed to be held accountable for their actions became more prevalent than discussion of the juvenile justice system as a “kind and just parent.”

In reality, youth crime hadn’t changed that much since the nineteenth century. Boys charged with offenses tended to be accused of some kind of theft, while girls were often taken to court by parents for “running wild,” which often meant having sex. Young people could be locked up for “status offenses”—truancy, incorrigibility, smoking, drinking, sexual activity. If anything, the hysteria about youth crime was fueled by Supreme Court decisions that extended some—but not all—due process protections to young people in delinquency proceedings. In re Gault (1967) gave youth faced with detention the right to counsel and other basic procedural protections.3 In re Winship (1970) held that a lower standard of proof was not acceptable to convict a child of an offense that would have to be proved beyond a reasonable doubt for an adult. Previously, some juvenile courts were using the lower standard of preponderance of the evidence, the standard used in civil trials.4

Getting Tough on (Black) Youth

Gault and Winship were followed by two trends during the 1970s and ’80s. One involved the closure of detention facilities because of cost and the perception that children should not be locked up for status offenses. The other was a “get tough” attitude toward young offenders charged with criminal acts. Reserving imprisonment for “criminal” rather than simply “rebellious” youth made it much easier to sell the “adult time for adult crimes” message.

The juvenile justice system became increasingly racialized in tandem with the foster care and criminal justice systems. As Black youths became more and more visible in northern cities, more and more Black children and youth found themselves in juvenile court for delinquency proceedings, and that percentage continued to rise as the “get tough” policies became more popular.

As has been the case since the first juvenile court was established, most males in delinquency proceedings are charged with nonviolent theft, although the “war on drugs” has dragged in many young people as well. In 2003, 68 percent of young offenders detained for delinquency were charged with nonviolent property, drug, or public order offenses. Of those charged with crimes against the person, one of the largest cohorts was detained for simple assault, which is likely to mean adolescents fighting.5 Violence involving firearms has increased, primarily because firearms are more ubiquitous than they were in the early years of the juvenile justice system.

FBI data indicate that violent crimes are committed by Black and white youths at a 3:2 ratio, but Black and white youths are arrested for violent crimes at a 4:1 ratio. In terms of drug offenses, the disparity is horrific. In Baltimore in 1980, five Blacks were arrested for drug possession for every white arrested. Ten years later, the ratio was 100:1.6 This despite the fact that Black youths are no more likely to be involved in drug activity than white youths. Blacks are more likely to be remanded, more likely to be found guilty, and more likely to serve a custodial sentence. Among those remanded, Black youth are more likely to go to secure detention rather than an unsecure alternative.

During the 1990s, the number of inmates and detainees in adult facilities quadrupled, and then began to fall somewhat, partially as a result of federal legislation limiting the ability of states to put juvenile offenders in adult jails and prisons. The law allows children and youth charged or convicted as adults to be housed in either adult or juvenile facilities. Thus, adjudication as a youthful offender will limit placement options, while a decision to seek conviction as an adult will not.

The most notorious manifestation of the “adult time for adult crimes” movement was Proposition 21 in California, a ballot referendum passed in 2000, which mandated adult prosecution for certain specified offenses and vastly increased penalties for juvenile offenses deemed “gang-related.” It passed overwhelmingly on the argument that there was a growing epidemic of youth violence, although violent crime by young offenders was actually dropping at the time.7

Imprisonment of youth has declined during the current century, but inconsistently. Between 1997 and 2003, twenty-five states saw a decline in detention rates, while twenty-fives states and the District of Columbia saw an increase.8 One change has been the emergence of kids’ jails as a profit opportunity. About 60 percent of facilities are now private, although they account for less than half of the beds in the system. Although some are run by nonprofit organizations, many are run for profit.

Locking Up Kids for Profit

The jailing of children for profit opens up new possibilities for abuse, as the business plan for a for-profit jail requires a steady stream of detainees. The industry can be expected to engage in lobbying and corruption to maintain cash flow. An extreme example occurred in Luzerne County, Pennsylvania, where two judges were convicted in federal court in 2010 and 2011 of racketeering for accepting nearly $3 million in kickbacks over five years from the operator of a for-profit juvenile detention facility. In return, the judges ensured that the facilities remained filled with kids charged with offenses in delinquency court. As a result, the rate of incarceration for youth found delinquent in Luzerne County was roughly two and a half times the statewide average, and the percentage of youth appearing without an attorney was nearly ten times the percentage for the state.9

The Juvenile Law Center in Philadelphia summarized the dynamic that is created by jailing children and youth for profit:

It is axiomatic that for-profit programs are in the business of making money. While detention centers provide some short-term services to youth, their primary mission is control. At their core, detention centers ensure that a youth will show up at trial and not commit an offense prior to trial. For-profit detention centers make their profit based on a headcount. While public detention centers will stay in business even if their populations are low, for-profit detention centers cannot afford low populations.10

Thus, a privatized system is based on a business model requiring an adequate supply of young people to operate at capacity and maintain cash flow.

Another driver of youth incarceration (and racial disproportionality) is the “zero tolerance” movement in school discipline. School systems actively feed children into the youth jail system, often for infractions that would once have earned a student an in-school punishment. In the Luzerne “Kids for Cash” scandal, the schools were a vital part of the scheme:

By 2005, school officials were well aware that the one certain way to rid themselves of a troublemaker was to call the police, because this would get the child before [Juvenile Court Judge] Ciavarella. These kids were not only disciplinary headaches, they often were low achievers academically and dragged down test scores, making it doubly desirable to get rid of them. Behaviors that once were matters of in-school discipline—shoving matches, foul language, disrespect to teachers—were elevated to law enforcement issues. . . . In short, Luzerne County educators used Ciavarella as their chief disciplinarian.11

In October 2012, the Justice Department filed a lawsuit against the state of Mississippi and various government bodies in the city of Meridian, claiming the Meridian school district developed new policies to call the police and have students arrested for “crimes” such as using profanity, disrespect, and failing to obey a teacher’s directions. The courts, probation, and other agencies cooperated by promptly locking up the children without troubling themselves with the niceties of due process and effective legal representation. Every child arrested at the request of the school district was African American.12

The consequences for the students in Meridian were identical to those in Luzerne. The only thing that made Luzerne an exceptional case was the payment of bribes to judges. Prior to their exposure, the corrupt judges were pillars of the community, and the local school regularly invited one of them to give stern warnings at school assemblies. The community leaders were not outraged because the judges were locking kids up for often trivial offenses, but because they were accepting bribes to do so.

Conditions of Confinement

Consistent with the notion of the state as a “kind and just parent” concerned with the welfare of the young offender rather than retribution, juvenile detention is supposed to be corrective but not punitive. The reality is that juvenile detention facilities use essentially the same punitive measures as prisons. A 2009 review commissioned by the US Justice Department analyzed 79 of the 110 suicides that occurred in juvenile detention facilities during the four-year period between 1995 and 1999. The study found that half had been in solitary confinement at the time they committed suicide, and 62 percent had a history of solitary confinement.13 In 2014, the Youth Law Center filed a complaint seeking investigation of use of pepper spray against juvenile inmates in San Diego. What they discovered is that pepper spray is often used in combination with solitary confinement. They also found that the extent of solitary confinement is obscured by how facilities can choose their own definition of the term. If the facility says that “room confinement” for days at a time is not solitary confinement because the juvenile is not placed in a designated solitary confinement cell, it will simply report no use of isolation.14

“Crossover Youth”

The links between the child welfare and juvenile justice systems go beyond their common origins and the largely unrealized goals progressive reformers set for these systems. Very often, they are dealing with the same children. The most direct connection is the population of “crossover youth” who move directly from the foster care to the juvenile justice system. Washington State estimated that third of its detained youth were or had been in foster care. Other jurisdictions have found between 9 percent and 29 percent to be crossover youth.15

The connection continues into adult prison. According to federal data, approximately a quarter of incarcerated adults were once in foster care.16 Foster care and juvenile justice function as components of the “school to prison pipeline” feeding mass incarceration. As the Luzerne and Meridian cases show, the schools are often participants as well.

One activist who recognized the connections between the two systems is Sharonne Salaam, the mother of Yusef Salaam, who at fifteen years of age in 1989 was arrested for rape and assault in the widely publicized “Central Park Jogger” case. Yusef was convicted and spent seven years in prison before being exonerated when another person confessed. Neither Yusef nor his four codefendants had any involvement in the crime. While her son was still in prison, even while working to establish his innocence, she formed a group called People United for Children (PUC) to work on behalf of children and youth incarcerated in the New York State juvenile justice system. Before long, she realized that foster care was the source of much of the population in juvenile justice facilities, and PUC began to focus “farther upstream” on preventing kids from entering care.17 Her concern for young people in detention led Ms. Salaam to look at where they came from, and to connect their entry into foster care with their eventual placement in detention. She concluded that the best way to prevent the harm that resulted from involvement with the juvenile justice system was to reduce the likelihood of entry into foster care.

Dorothy Roberts explored the intersections of the foster care, juvenile justice, and adult incarceration systems, and rooted them in the ideology of free markets:

Over the last several decades, the United States has embarked on a pervasive form of governance known as neoliberalism that transfers services from the welfare state to the private realm of family and market while promoting the free market conditions conducive to capital accumulation. At the same time that it is dismantling the social safety net, the government has intensified its coercive interventions in poor communities of color. The neoliberal regime does not unidimensionally shrink government. It equally depends on the brutal containment of the nation’s most disenfranchised groups. The welfare, prison, foster care, and deportation systems have all become increasingly punitive mechanisms for regulating residents of the very neighborhoods most devastated by the evisceration of public resources.18

As Roberts suggests, the intersection of foster care and detention is not just a disappointing outcome that occurs because we haven’t figured out how to make these systems work as intended. In fact, crossover between these systems demonstrates that there is a unity of purpose. The distinction between punitive intervention—supposedly reserved for “criminals”—and child welfare intervention for families and youth is largely artificial. Both serve the function of closely regulating the same families and communities.

There is urgent need for reforms in juvenile justice, beginning with an end to solitary confinement, incarceration in adult facilities, and incarceration of youth with mental illness, as well as the use of community-based restorative justice measures in place of incarceration of juveniles. Examples of programs that have demonstrated success include a program in Indiana that put young offenders to work repairing damage done as a result of break-ins in their own community, another which has them help restore damaged wetlands in the Florida Everglades to work off restitution paid to their victims, and a program run by the Red Lake Nation Band of Ojibwe, which has tribal elders work with young offenders one to one and develop an individualized plan for restitution. These programs have shown reduced isolation of young offenders, greater satisfaction among victims and members of the community, and heightened self-esteem and skill building among offenders.19

Since the juvenile justice system is a bridge between the child welfare system and the adult incarceration system, the fight for these reforms should be linked to the fight to reform child welfare as well as the fight against mass incarceration generally.