Room for a view

The War On Our Young People

by Lorna Tychostup

Introduction—
A Brief Glimpse Into This Can Of Worms
The doling out of criminal punishment in our country has its roots in English history, firmly planted with the arrival of the Puritans. Since then, the American psyche has been a battleground between the ideals of rehabilitation and reformation of those who commit offenses—both children and adults—and the hunger for retribution. The result has been a schizophrenic countenance of justice. The historical positioning and postulating on issues of justice by candidates and incumbents for governing positions have often had little or nothing to do with what is actually good and might work. Like Pavlov’s dog, politicians, feeding out of the pollster information bowl, quickly recognize what will get them votes and what won’t: a rolling economy; talk of promotion of the general welfare of the people; the perception of domestic tranquility; and a show of obvious strength meant to crush any and all supposed enemies. At this point in time the enemy has become our very own children.
Due to rising crimes rates among young people beginning in the mid-1980s and lasting through 1994—the same time period which saw the emergence of crack cocaine and its subsequent devastation in economically deflated areas—media-projected images of the youthful “super predator” and “teenage time bomb” were foisted upon the American public. While bringing attention to a real increase of crime from 1988 to 1993, specifically that of murders committed by teenagers aged 14-17, the media played a clear and substantial role in igniting fear in the hearts of Americans by blowing reports of juvenile crime out of proportion.
According to information released by the National Center On Institutions and Alternatives, “TV crime coverage is one of the biggest reasons that people who live in neighborhoods with virtually zero street crime report that crime is [their] number one concern.” Giving in to this media-driven fear, politicians on both the state and federal level, began to take a highly visible “get tough on crime” stance, which has since been dubbed “the war on juveniles” by advocates of the juvenile justice system. A 1999 report issued by Amnesty International, states that in the years spanning 1992 and 1995, “47 state legislatures and the District of Columbia introduced laws that increased the eligibility of children to be prosecuted in general [adult] criminal courts, to be sentenced as adults and even imprisoned in adult correctional facilities.” These draconian laws not only enlarged the number of offenses for which a child could be tried in an adult court, they also included provisions that would allow for prosecution of children as young as 14 as adults.
In 1995 , the US federal government began to encourage individual states, through funding initiatives, to prosecute children as young as 15 as adults who have allegedly committed a violent crime (in New York State the age is 13 years). This shortsighted vote pandering has left juvenile law experts scratching their heads in wonderment at the failure of officials to pay attention to historically noted factors linking poverty, mental illness, and a lack of social services to children and families to crime. Many candidates and elected officials continually ignore stacks of recommendations based on research compiled by such juvenile justice entities as the US Department of Justice, the American Bar Association, the American Civil Liberties Union, numerous juvenile law experts and social services advocates that clearly point out what works and what doesn’t work to lower crime among young people.
Not to mention the fact that serious crime and teen homicides have been dropping steadily since 1994.
Even more horrific, most elected officials have also turned a deaf ear to issues surrounding the death penalty, specifically as applied to those who have committed crimes as children. The latest chapter in the American death penalty history began in 1972 when the Supreme Court struck down all then-existing death penalty laws. Sentencing under new death penalty legislation began the very next year, although the constitutionality of these laws wasn’t recognized by the Supreme Court until 1976. Executions began in 1977, but it wasn’t until 1985 when the first person who had committed a crime as a juvenile, that is, under the age of 18, was executed.
Since 1985, seventeen juvenile offenders have been executed, eight of them in just the last three years. All were 17 years of age at the time of their crimes except for one who was 16. At present, there are 74 juvenile offenders on death row, twenty of them were 16 at the time they committed their crimes. The other 54 were 17. Slightly more than one third of these executions occurred in the state of Texas, which is joined by Florida and Alabama as the leaders in the practice of sentencing juveniles to death. As the media continues to depict America’s youth as our country’s latest public enemy number one, politicians in several states have been heard recommending making children as young as 11 years old eligible for the death penalty.
These efforts to legislate changes in the way children are treated in the courts are seen by many as an erosion of the juvenile court system itself.
A recent addition to the American court system, the very first juvenile court was created in Chicago in 1899. Up until that time children were tried in the same courts as adults. Spreading quickly to other states, the creation of a separate juvenile court system was to end the practice of trying and imprisoning children under the same guidelines as adults. Seen as a major victory for the reform movement led by progressive social and political activists in Illinois at the turn of the century, the focus of the juvenile court was supposed to be on rehabilitation of the not yet mature and therefore, malleable population, and not solely on retribution and punishment.

Nothing New Here—The Continuing Cycles Of History
Politically motivated attention to criminal justice and juvenile justice is not new to American history. Neither is the way economic fluctuations can influence societal definitions of who is a criminal and who is not, or views as to how to deal with criminal acts as well as rates of executions of both adults and juveniles. Historical studies related to social psychology have long shown a rise in the number of criminal accusations and executions against members of specific groups, perceived to be weaker, who are scapegoated when there is an economic downturn.
The first historical notation regarding the criminal treatment of juveniles in what was to become the United States of American occurred in Plymouth Colony, Massachusetts, in 1642. Thomas Graunger was hung for the crime of copulating with a mare and a cow. He was 16 at the time he committed the crime, as well as when he was executed. The mare, the cow and several young calves were destroyed first. Prosecution of Graunger was based on the scriptures, Leviticus 20:15: “And if a man shall lie with a beast, he shall surely be put to death: and ye shall slay the beast.”
The great Puritan migration of the 1630s saw thousands of religiously and economically aggrieved people dissatisfied with English rule arrive on the shores of the New World. They came with a definite mission—to establish a community rather than set up a new colony. A community in which they could protect themselves from the king and Church of England and live according to their own beliefs. By 1634, 10,000 radical Puritans had settled in New England. Puritan migration ended in 1637 as the English Civil War began to brew and most Puritans still living in England decided to stay there hoping to reform the Church of England.
Since the early New England colonial economy was based on raising cattle, corn and other foodstuffs to financially capable newcomers, once the flow stopped the colonial Puritans were forced to look for other means of livelihood. This heralded the first major depression, or “fall of cow,” as it is said a local poet then described it. It is interesting to note, that within five years of the onset of this first major American depression, Thomas Graunger was executed. The next documented execution of a juvenile didn’t occur until 1722.
The roots of our modern government began to take hold in Massachusetts Bay. Generally, there were elections of officials who also served as judges and passed judgment based on intuition and the Bible. When the people complained of too much discretion on the part of the judges, various statutes were adopted which contained the classic safeguards of English liberty: trial by jury, no taxation without representation, free elections, no depravation of life, liberty, or property unless under due process of law or self-incrimination. The Puritans also followed the basic Calvinistic tenet that all people are inherently sinful. While some discretion continued to be used on the part of judges, children were nonetheless tried alongside adults.
This early Puritan form of government was copied by three other New England Massachusetts-based colonies, as well as by the older Plymouth Colony. One of the very first laws passed in the Massachusetts Bay Colony addressed “dealing with stubborn and incorrigible children,” according to David Tanenhaus, Assistant Professor of History at the University of Nevada and juvenile justice historian.
“Children who struck or disobeyed the parent, according to this statute, could be put to death after some sort of community hearing,” asserts Tanenhaus. “This was never actually done, but from very early on that law was on the books in Massachusetts Bay. Along with biblical connotations referring to honoring and obeying one’s parents, a sense of concerns regarding unruly or stubborn children has been a theme in American history from the very beginning. A lot of American law comes out of both English history but also from that period...with a strong Puritan sense that law, morality and sin are very intertwined and that religion is very central to American life.”
Since everyone was seen as sinful, the “idea was to bring the person who committed the offense back into the community,” says Tanenhaus. Early 17th Century laws stipulated a ‘three-strike policy,’ for which the individual received a shameful punishment for the first offense, a more severe punishment for the second offense, and banishment or death for the third.
According to Victor L. Streib, Dean and Professor of Law at the Claude W. Pettit College of Law, Ohio Northern University and a leading national juvenile death penalty researcher, “If you go back into early Massachusetts and early colonial days, you enter into varying kinds of legal systems, varying kinds of community operations, domination by church and community, and the notion of the rule of law is fuzzier. Very often the judge and the sentencer was the town leader, and very often the church leader.” Streib contends that in the early colonial days, “There were probably hundreds of juveniles who committed capital crimes. Probably 20 or 30 of them were sentenced to death, and only one or two of them actually executed.”
As we move away from the Puritan era which views people as inherently sinful, Tanenhaus says, “the notion that people are innocent as children begins to develop,” along with “the notion that childhood is distinct and separate from adulthood.”
As the deluge of immigrants spread throughout the New World, so did poverty and crime, as well as the need to house the growing number of poor people and criminal offenders, children and adult alike. It is important to note that treatments of poverty and crime were inextricably linked from the very beginning of the American history. It is also important to note, that as one reform idea would arise in one locality, it quickly spread around the country, especially to more populated and urban areas. This time period also saw the rise of police forces, especially in urban areas. As the country grew, so did the need and desire for enforcement of law and ordered maintenance of the population.
The rise of prisons as an agency of punishment was a slow process which grew over several centuries, from crude beginnings in 16th Century Europe. The American Quakers, one of several offshoots of Puritanism, brought forth important ideas and practices such as charity and reform into American consciousness. Efforts by the Quakers and others saw the New York State legislature authorize the construction of the first prison in New York City in 1796. Rather than follow what Quakers felt were revenge-based punishments then currently used, prison would deter others from criminal acts, and prevent criminals from repeating their criminal activities while morally reforming and rehabilitating those open to changing their ways.
In accordance with the philosophy of rehabilitation, humanitarian revisions to the penal code lowered the number of capital offenses from 13 to three, which allowed incarceration instead of death and other forms of corporal punishment. The Quakers also helped to create schools and charitable organizations for the poor. While many of the first Quaker schools allowed admittance of non-members, such as blacks and poor white children, this mixing made the Quakers anxious over outside influences and caused them subsequently to open exclusively Quaker schools. The need for classification and separation to prevent outside influences soon became part of Quaker dogma, heavily influencing the future of juvenile justice.
While seen as the first of several major reforms to the criminal justice system in New York State, the construction of New York City’s Newgate Prison simply led to its being filled. Prisoners who would normally have been given shorter sentences were now subjected to longer ones; there were riots and on occasion, and shooting of prisoners. Politically hired employees ignorant in the treatment of prisoners and of how to run the prison, were alleged to have spent funding poorly. By the early 1820s, many recognized that the penitentiary system had failed to reform prisoners based on a 1822 Report on the Penitentiary System in the United States, issued by the Society for the Prevention of Pauperism in New York City.
In addition, the report focused on the plight of children and brought widespread public attention to what was seen as one of the major evils of prison reform: locking up children with adult criminals: “The hardened convict,” the report read, “will maintain his abandoned principles, and the novice in guilt will become his pupil...the policy of keeping [juvenile offenders] separate from old felons is too obvious to require any arguments.”
The report, in recommending steering pre-delinquent children away from a continuing life of crime, stressed the need for classification among criminals, “especially important for juvenile offenders...[whose] characters are not formed.” It acknowledged the damaging effects of poverty, the lack of role modeling, the lack of parental guidance, and in the case of orphans, the lack of family life. “They’re lives exhibit a series of aberrations from regularity—a chain of accidents that has rendered them the victims of temptation.
While the report concluded that if success were to be achieved in the penitentiary system, “criminals should sleep in solitary cells,” it had earlier attacked the practice of solitary confinement as a severe state of punishment for young people who had committed only one offense and who might eventually be “reclaimed and rendered useful.” The seeds of separating children from adults had begun to sprout.
One year later, another report issued by the same group demanded that children “not be confined to the infamy and severity of punishments” stemming from criminal activity brought on by the lack of schooling, employment, and parental neglect due to poverty and degeneration.” Since many children had been convicted as ‘disorderly’, an offense legally defined in part as, “all persons wandering abroad and begging, and idle persons, not having visible means of support,” reformers understood that being poor and neglected were the only true offenses many of these children were guilty of.
The New York legislature responded by authorizing a charter and construction of the New York House of Refuge to the Pauperism group, which had since become the Society for the Reformation of Juvenile Delinquents. The first of many such houses to be built in the country, this was deemed “the first great event in child welfare” in the period before the Civil War. It was intended to house 16 year-old boys guilty of vagrancy, petty thefts, and minor offenses, and the focus was on prevention of delinquency.
This reformation period also saw the emergence of crime prediction based on information gathered over periods of time, as well as the doctrine of parens patriae, which authorizes the state to legislate for the protection, care, custody and maintenance of children within its jurisdiction.
These developments heralded the separation of juveniles from adult criminals and firmly planted the roots of a separate juvenile justice system. However, these reforms came in the form of a double-edged sword. A Protestant-based belief in the need for atonement and punishment saw offenders subjected to a combination of a care for their physical and moral well-being mixed with open animosity on the part of the “Managers” within the House of Refuge movement. Severe punishment and adherence to Protestant beliefs were the rule of the house.
At the heart of these reforms was a belief that if one could change the morals of the poor, then they would become more prosperous. The leading cause of pauperism was seen as ‘intemperance’ (indulgence of an appetite or passion) according to an earlier report released in 1810 by the Pauperism group. The reality of a severe depression brought on by the Embargo Act of 1807, which prohibited all exports from the US, was never mentioned in any of the reports on pauperism. The embargo hit especially hard the New England and New York’s seaport areas.
Some have suggested that the House of Refuge movement was not just a humanitarian effort, but also a regression in policies relating to the poor, and a reaction to continued immigration. In 1801, a spokesman of the Pauperism group warned that West Indian and European lower-class immigration would result in an uncontrollable generation. Up until 1830, the parental origin of children incarcerated in the House was listed as either ‘American’ or ‘foreign’. After 1830, when nationality was specified, Ireland was the country most noted.
In 1819, the New York legislature declared that the government was not responsible for the poor who were “idle…vicious…and intemperate” and recommended private charity would better aid this group in need of reform. Private charitable efforts did help many people, but over time there grew a great deal of disdain for the poor and often foreign-born recipients of these efforts. One report discussed whether charitable intervention to prevent death was worth the effort if it couldn’t motivate the poor person to help themselves. By 1889, it was reported that the then mayor of New York felt that conditions in institutions that housed the poor were too cushy. Public charity, others recommended, should be made less attractive to encourage the poor to prosper.
The 1800s was a time of great attempts to classify, create and direct certain previously muddled entities into appropriate groupings and placements: adults and children, male and female, criminals, the poor, orphans, runaways, the abused, vagrants, etc. By the mid-1800’s, an idea began to formulate that spoke to the importance of an individual’s connection to some sort of community. “It involves the notion that people are going to do a lot better if they have good supervision and not institutionalized,” says juvenile historian Tanenhaus. “Probation, or the notion of probation will always be seen as the real cornerstone of a juvenile court system.” By the end of the 1800s, “People were saying, ‘We just ended up creating houses of refuge which seem to be warehouses for all types of children and we need to have better systems to separate dependent from delinquent children.’”
This is the first installment in a two-part series on the history of the juvenile justice system. Next month: The 20th century begins with the development of the child study movement and the creation of a separate juvenile court system, both of which view childhood years as very separate from adults years, and attempt to help juveniles through the “storms of adolescence.” Yet by the end of the century, children have become public enemy number one.