It is noteworthy that reforms of both mental health institutions and the juvenile justice system had the same trajectory: initiated by civil libertarians in the name of recognizing the dignity & autonomy of the individual & endowing the mentally ill & young offenders with rights, the reforms ended up, contrary to the intentions of the reformers, becoming parts of neo-liberalism.
Neo-liberalism = de-modernization. This equation is perhaps the most starkly visible in the belly of the beast and former socialist nations.
***** The New York Times September 10, 2000, Sunday, Late Edition - Final SECTION: Section 6; Page 41; Column 4; Magazine Desk HEADLINE: The Maximum Security Adolescent BYLINE: By Margaret Talbot; Margaret Talbot is a contributing writer for the magazine and a fellow at the New America Foundation.
...One hundred years ago, when progressive-era reformers first invented the idea of a separate justice system for juveniles, it was boys like Jeff [a 14-year-old boy] and Marco [another 14-year-old boy, arrested for "molesting his 7-year-old sister"] they had in mind. Nearly everything about the newly created juvenile court, from its paternalistic ethos to its central tenet that juveniles were not to be confused with hardened criminals to its goal of sentencing "in the best interest of the child," represented a radical break with the past and a pledge of faith in the malleability of youth. Until then, children had been tried, sentenced, imprisoned and sometimes executed alongside adults.
The common-law tradition did offer some recognition that young children were different from adults. Children under 7 who committed crimes were presumed not to be responsible for them and could not be punished. But after that, the question of culpability got murkier. Those between the ages of 7 and 14 were generally thought to lack responsibility for their actions. Those between 14 and 21 were presumed capable of forming criminal intent and were therefore punishable. Yet as early as the 1820's, judges who had to sentence juveniles in criminal court worried openly about the implications of putting young people behind bars. Letting them off scot-free was neither morally nor socially acceptable, but sending them to jail or prison with adults was like consigning them, in the words of one judge, to a "nursery of vices and crimes, a college for the perfection of adepts in guilt."
By the turn of the century, these qualms had spread widely enough to make jury nullification a problem: jurors were acquitting young lawbreakers rather than imposing sentences that would lock them up with adults. At the same time, the emerging child-study movement and the new specialty of pediatrics helped popularize the idea that childhood was a distinct phase of life and that adolescents, in particular, moved through discrete developmental stages, which adults had a duty to try and understand. Like compulsory school-attendance laws and bans on child labor, the juvenile court was a product of this new approach to childhood. It was to be presided over by a judge in street clothes, not a black robe, seated at a desk, where he could easily put a reassuring arm around a troubled lad.
In 1899, Illinois established the first juvenile court; by 1925, 46 states had done the same. The idea of a justice system tailored for children sank deep roots in American culture. In fact, it was not until the late 1960's that the system came under any real questioning. Paradoxically, the assault was launched by the civil liberties left. Because the juvenile court was supposed to be helping the accused child and because it shielded his identity in a way the criminal court did not, it was liberated from the necessity for due process protections -- the right to counsel, the right to confront witnesses, the privilege against self-incrimination and so forth. The trouble with this arrangement was that it offered the court nearly unlimited authority to confine youths while it devised cures for their antisocial behavior.
The civil liberties critique of the juvenile justice system found its most powerful expression in the Supreme Court's 1967 decision in the Gault case. On June 8, 1964, Gerald Gault, a 15-year-old boy living in Gila County, Ariz., made an obscene phone call to his neighbor, one Mrs. Cook. (He wondered, quaintly enough, if she had "big bombers.") Mrs. Cook called the sheriff, who arrested the boy; his mother came home from work and found Gerald missing, with no explanation. At two subsequent hearings, Mrs. Cook never appeared, no other witnesses were sworn and no transcript made. Yet in the end, the judge ordered Gerald committed to a juvenile facility until his 21st birthday -- even though the maximum sentence for an adult who committed the same crime would have been two months in jail or a $50 fine. When the Supreme Court acted on the case, it concluded in irate language that Gerald's constitutional rights had been breached by "a kangaroo court" -- and extended to juveniles all due process rights except that of a jury trial.
Gault was a necessary reform for a system that had become too arbitrary. But instead of leading to further constructive reforms, it led to full-scale rebellion: Gault helped open the door to the dismantling of the juvenile justice system. It galvanized a liberal movement for emancipation of minors that cast them as rights-bearing autonomous citizens, barely distinguishable from adults. It also "energized the tough-on-crime constituency," says Steven Drizin, the supervising attorney at the Children and Family Justice Center at the Northwestern University School of Law. "The juvenile court has been fighting the sound bite ever since that if you give kids adult rights, you can give them adult time, too." Of course, kids, some of them anyway, weren't helping matters. A spike in the juvenile crime rate in the early 1990's and a cluster of school shootings in the latter years of the decade all created the impression that young people were getting away with murder.
Even after the juvenile crime rate fell precipitously in the late 90's, this sentiment continued to gain currency, as Franklin Zimring, a criminal-law professor at the University of California at Berkeley, points out, because "a punishment gap was opening between the adult and juvenile systems. The tough-on-crime crowd had won the war in the criminal system; now they looked at the juvenile court and said, 'Hey, we've got to make it look more like the adult version."' Increasingly, the focus was on the offense, not the offender.
"What I noticed," says Stephen Harper, an assistant public defender in Miami who has handled cases in which juveniles were transferred to the adult system, "is that there was much less curiosity about who a kid was, why he might have done what he did. Was there abuse in his background, neglect, a drug-addicted parent?" Indeed, as more and more states began transferring kids to adult court, it became clear that youth itself would not be considered a mitigating circumstance. There was no contemporary legal precedent for going easier on a 14-year-old than a 40-year-old in criminal court -- that's what juvenile court had been for, after all. And in any case, the new mandatory sentencing laws left judges little opportunity for leniency.
The new attitude meant passing laws that allowed more and more kids to be sent to adult court at younger and younger ages -- many of them poor, a disproportionate number of them black. It also meant breaking the old taboo against dispatching the young to adult prisons, those "nurseries of vices and crimes" that advocates of the juvenile court had long lamented. *****
Yoshie