Room for a View

Lost in the System
The War on Our Young People, Pt. II
by Lorna Tychostup

Last month Lorna Tychostup traced the early history of the juvenile justice system until the end of the 1800’s in part one of her article titled, “The War On Our Young People.” This month, Tychostup picks up where she left off with the birth of the first juvenile court in 1899 and brings us to the present day, when the juvenile court might soon become a thing of the past.

This summer, the Times Herald Record headlined a story July 27th about a 67-year-old retired New York City policeman pulling a gun on a 13-year-old and his same age friends after an inadvertent collision on an Orange County bicycle path. A story on page three told of the sentencing of a 63-year-old man who choked an 8-week-old puppy nearly to death, then buried alive. After sentencing the man to a year in county jail, enforced counseling and forbidding him from ever having a pet again, the presiding judge admitted he had received “more correspondence in this case than in the [Christopher] Gardner case.” Three-year-old Christopher Gardner, the article explained, “was beaten and tortured to death by his mother and two of her housemates in 1998.”
One day in the life of a typical American community, according to the local newspaper shows kids at risk from the adults around them. Yet more protective attention is paid to the plight of animals abused by adults. This is nothing new. In 1874, nine-year-old Mary Ellen lived in the home she was placed as an infant when a church child welfare worker discovered she was being beaten and mistreated by her foster parents. Unable to get a court order to remove her from the home—there were no laws in existence at the time to protect a child from abuse—the social worker went to the NYC Society for the Prevention of Cruelty to Animals for help. Founded some eight years earlier in New York City with the purpose to protect the welfare of “dumb beasts”, the SPCA decided to classify Mary Ellen, a human child, as a member of the animal kingdom in order to get her removed from her foster home.
This set an important legal precedent: “If a child has no rights as a human being under the law, he is at least entitled to the justice of a cur on the streets.” This decision found the SPCA swamped with complaints regarding the abuse of other children. In 1875, nine years after animals came to be protected under the law, the Society for the Prevention of Cruelty to Children was created in NYC. The idea of such “societies” spread quickly around the country, as did Humane Societies which combined both child and animal protection. These early societies were not only concerned with rescuing children, but also with punishing their parents.
The combined efforts of these child watchdog agencies coupled with the development of the child study movement under the guiding eye of psychologist G. Stanley Hall in the late 1800s did much to change laws regarding the treatment of abused, delinquent, and dependent children. Stanley’s work lent “scientific legitimacy to the idea that children are qualitatively different than adults,” says juvenile justice historian David Tanenhaus, and therefore should be treated differently. “And a lot of efforts were made to try to find ways to help people through the storms of adolescence.”
The first juvenile court was established in 1899 in Cook County, Chicago, as Illinois politicians were quick to pick up on the shouts of the child welfare and child study proponents. The idea quickly spread around the country. According to Victor Streib, Dean and Professor of Law at the Claude W. Pettit College of Law, Ohio Northern University and the leading national juvenile death penalty researcher, “Within 20 years every state in the country [except Maine and Wyoming who were on board by 1945] had a juvenile court system which was almost identical to the one in Chicago. The bizarre thing is that after all the different ways [the states] treated juveniles, all of a sudden we’re all doing the same thing.”
“The same thing” amounted to the creation of standards regulating the treatment and control of dependent, delinquent, neglected and abused children with an emphasis on probation and keeping children out of jail; specialized trial sessions; separate detention institutions for delinquents (as stipulated in New York laws); the doctrine of parens patriae (“state as parent”); and the operation of a court completely separate from the adult criminal court. No longer would children be tried as adults, given long prison sentences or be jailed in prisons (an expensive placement) among hardened criminals. Instead they would be funneled to private schools, agencies, and appropriate (preferably rural) family placements, which were the precursors of foster homes.
This court was to be a place of aid, education, and clinical review, not retribution or punishment. Even the language used in juvenile court was to differ from that used in adult criminal court—a child was no longer said to be “convicted” but instead described as an “adjudicated delinquent,” for instance. And in 1912, reformer Grace Abbott, who was later to serve as chief of the US Children’s Bureau from 1921 to 1934, said the classification of child offender would no longer be “as a criminal but as a delinquent.”
According to the American child guidance movement, also birthed in Cook County (1909), the only way to understand a child’s behavior was by examining that child’s individual history. Child guidance centers were opened and operated on a team approach, with children receiving psychiatric review and treatment, parents receiving social work services and volunteers visiting the homes.
This approach prompted juvenile court officials to seek underlying reasons leading to the child’s offense or behavior so rehabilitative steps could be taken. Mental health services began to collaborate with the juvenile justice system as judges sought information about children’s backgrounds from social workers before making their decisions. As the ideas that children were qualitatively different from adults—psychologically, emotionally and developmentally—and were inherently good, it was decided that juvenile victims of abuse, neglect, abandonment, poverty, etc. were to be protected, defended, and looked after.
Judges alone made decisions. No prosecutors were to be present to represent state interests and pubic safety, no lawyers to represent the children. All hearings were to be closed to the public. Decisions based on judicial rule, privacy, the removal of stigmatizing labels, and proper rehabilitative placement were to be made. As the juvenile system spread across the country, most courts took no transcripts of proceedings, made no formal presentations of evidence, did not argue opposing sides, did not allow the cross-examination of witnesses or allow any appeals process. The purpose was to speed the judicial process in order to protect the child and get them the help they needed.
However, this streamlining also removed any outside scrutiny of the system, as well as most of the constitutional and legal protections that were present in the adult court.
It was almost 70 years before much needed outside scrutiny brought attention and critical review to horrible abuses within a system which in many cases had fallen away from its original intention: the protection and rehabilitation of children.
The case of fifteen-year-old Gerry Gault was brought before the Supreme Court in 1967. Taken into custody on June 8, 1964, Gault was sentenced only seven days later on June 15 to seven years in a “state industrial school,” due to a complaint that he had made lewd phone calls. An infraction, which if made by an adult, would involve a $5 to $50 penalty, or “imprisonment of not more than two months.”
The landmark Supreme Court decision in 1967, In re Gault, stated, “So wide a gulf between the state’s treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliché can provide...The rhetoric of the Juvenile Court movement has developed without any necessarily close correspondence to the realities of court and institution routines.”
Upon examination of other cases involving the Juvenile Court the Supreme Court found that judges who had ruled on these cases “had no law school training; no college education; no probation, social work staff, psychiatrist or psychologist available to them; and no understanding of the issues involving the American Juvenile Court.” The high court found it disconcerting that the term delinquent had come “to involve slightly less stigma than the term ‘criminal’ applied to adults.” Further, the court stated, “There is evidence...that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”
In exposing the juvenile system, the Supreme Court eliminated the informal nature of the Juvenile Court system and subsequently gave many of the same rights routinely allowed to adults entering criminal court to juveniles entering Juvenile Court, including that of the right to counsel. Undertaken to protect children, these changes inadvertently served to shift the focus of the court away from the welfare of the child and place it on the facts of the crime committed—the details of which can take years to sift through and leave the child in a sort of legalistic limbo, ignoring the very foundational factors that got the child into court in the first place. For many children, especially neglected or abused children, if their cases cannot be judged quickly and underlying reasons for the situation are not given immediate attention it can signal a death knell—spiritually, psychically, emotionally and physically.
In the case of Billy Nichols, the entanglement of both the informal nature of the juvenile court before Supreme Court intervention and subsequent changes made his life into a living nightmare. In 1960, he and his baby sister were found on the streets of Chicago eating scraps from a garbage can. Billy told welfare officials he was five-years-old, they decided he was seven and deemed him retarded. Although both children were bright and personable, they were quickly separated (Billy’s sister was placed in foster care, he was not). Billy spent the next 4 years in a home for the profoundly mentally retarded, where once it was discovered he had poor vision, he was given glasses and his IQ scores rose. By this time he had begun to shoplift and cause trouble. He was moved briefly to a foster home and then spent three years in a juvenile security prison among rapists and murders—even though he had not been charged with a crime.
In 1969 Billy met Chicago legal aid lawyer Patrick Murphy, who filed a suit demanding that all dependent and neglected children be removed from the juvenile security prison. Murphy won the suit and Billy was sent to a state mental institution where he began to run away.
“You took a kid who was not retarded and treated him like he was retarded,” Murphy said. “You took a kid who was not a criminal and treated him like a criminal. And you took a kid who was not crazy and treated him like he was crazy.”
In 1970, Murphy became chief attorney of the Legal Aid Society’s juvenile division and within months he began rewriting the way juvenile justice was practiced in the state of Illinois. Fighting the system, he successfully defended and secured money damages for children tortured in foster homes or damaged by constant shuffling from home to home. He also won appeals in juvenile cases that he had originally lost—something unheard of in the Illinois juvenile court at the time. In Billy’s case, Murphy successfully sued the state of Illinois which turned Billy’s age back three years allowing him to continue to receive state aid in the form of a private psychiatric program for damaged children. Billy eventually married a resident of a halfway house.
Today, Murphy is Chicago’s Cook County Public Guardian, the only such titled office in the country which represents neglected and abused minors, as well as elderly wards of the state. In Wasted—The Plight of America’s Unwanted Children, written by Murphy in 1997, he states, “In 1968 there were fewer than 2,000 abused and neglected children in [Chicago’s] Juvenile Court. Between 1983 and 1986 the number increased but stabilized at about 8,000. By 1991 it had increased to 20,000. Today more than 40,000 abused and neglected children are in the custody of the child welfare system in Cook County. Nationally...the states of California, New York, and Illinois harbor almost 40 percent of all children in substitute care, or about 180,000 children.” (Murphy’s first novel, Drowning in Hot Water, has recently been published by Poughkeepsie-baed Vivisphere Publishing.)
The shift from looking after the welfare of the child to shortsightedly focusing on their crime has led to the decay of the foundation of the juvenile court. The most obvious result has seen state after state pass laws allowing children to be transferred to adult criminal courts and tried as adults. In 1980, cases in every state in the US of children who had committed criminal offenses were seen in juvenile courts. Today, only the state of Hawaii restricts children under 16 to be tried in juvenile courts.
In addition, as juvenile violence began to reach crisis levels in the early 1990’s, the public began to withdraw its support of the juvenile court system. This withdrawal, hyped by exaggerated and misleading media displays of supposed widespread teen violence, was also fueled by frustration at the slow process and resolution of cases involving more serious delinquent crime. The result has been the shift of funding from socially rehabilitative efforts to the pouring of money into closer monitoring and imprisoning of the more serious offenders for longer and longer periods of time.
This diversion of funding has created an unsettling effect. With fewer resources available to help those children who are neglected or commit lesser crimes, and therefore might be more easily treated, given guidance and reformed (the original intent of the juvenile court system) the result is that many become lost and mistreated within the system. In many cases, these children go on to become criminals less amenable to reform, if at all, who only then receive the benefit of funding which only aids their incarceration, not their rehabilitation. This, at a time many feel is too late.
In addition, huge amounts of money—$100 billion is spent federally on crime control and state spending on corrections has increased faster than any other slice of the pie—have been poured into an already oversized criminal justice system. According to a report issued by the National Center on Institutes and Alternatives (NCIA), titled “What Every American Should Know about the Criminal Justice System,” 3% of the 1980 California state budget was allocated for prisons and 18% to education. By 1994, the allocation percentages were equal, and in 1995 “the overrun in state corrections spending exceeded the entire increase in higher education.” The report continued, “While new prisons are being built, schools are crumbling, highways are potholed, parks are left to decay, and opportunity-generating programs are being cut. These conditions breed crime in the long run.”
In 1974, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) was created. A component of the US Department of Justice, it is mandated to provide national leadership, coordination, and resources in the areas of juvenile delinquency, victimization, and juvenile justice. Interconnected issues which affect children’s lives, like mental health, substance abuse, education, and child welfare are explored and addressed under the OJJDP umbrella. This past June OJJDP funding helped bring together the leading forces helping to support the much beleaguered juvenile court system at a National Juvenile Justice Summit held in Washington, D.C. The Summit, part of the Juvenile Court Centennial Initiative to strengthen the court’s focus on rehabilitation, as well as promote its approach to “giving kids a better chance to make a better choice,” comes at a very important time in American juvenile justice history.
Despite the efforts of OJJDP and other agencies, the last two decades have seen an out and out attack on young people. In response to media-fed public concern regarding juvenile crime, both federal and state governments have made drastic changes to legislation resulting in a system rife with extreme and brutal punishments, as well as serious overcrowded conditions. The increase in this legislation started with the overhaul of the death penalty statutes beginning in 1972, was fed by the downside effects of the In re Gault Supreme Court decision, and more recently blew up with the sudden rise in drug/gun-related juvenile homicides which began in 1987 and reached thundering proportions by 1993.
Although statistics show a significant drop-off in juvenile crime, federally-funded researchers still cling to fear-mongering predictions of “future demographics.” According to a report released in 1997, “Trends in Juvenile Violence,” the next ten years will bring an expansion in the teenage population, particularly among African-Americans and Hispanics, as the ‘baby-boomerang cohort (offspring of babyboomers) matures into adolescence.”
What this report and an earlier version failed to recognize was the concentration of teen homicides—the single-most attention-getting aspect of the juvenile crime-related media campaign—only four American cities in 1994, and just six states in 1993 (Florida, Michigan, Illinois, New York, Texas and California accounted for 56% of all juvenile homicide arrests in the country).
A report issued jointly by NCIA and the Center on Juvenile and Criminal Justice in 1996 cited Chicago, Los Angeles, New York and Detroit with a “combined total of 929 juvenile arrests in 1994 [the same year the teen homicide rate peaked], accounting for 30% of the 3,102 juvenile homicide arrests in the nation.” That same year saw 82% of the counties in the US have zero known juvenile homicide offenders.
The report speculated that further research would prove a further concentration of teen homicides in specific neighborhoods within those cities, with 75% of the prison population in all of New York coming from just seven neighborhoods in New York City “Many residents of the affected communities justifiably live in constant fear and are desperate for relief. The rest of the nation is vicariously afraid of the violent juvenile crime they see on the news, but they themselves are not at imminent risk.”
The report also stated, “rather than reducing crime...transfer to adult court is associated with higher rates of recidivism. The high recidivism rate reflects the harsh and debilitating conditions present in adult correctional facilities.”
And just how far are we willing to go with treating children, who do not have the same basic rights allowed to adults, as adults? The question is certainly on the minds of many in Riverside County, California, where three-year-old Damien Stiffler was smothered to death on August 17 of this year by his six-year-old sister and her five-year-old friend. According to reports, one girl held a pillow over the boy’s head while the other sat on his legs.
“They knew what they were doing,” Riverside County Sherriff’s Sgt. Mark Lohman reportedly stated. “ I don’t know what part they played in this, but they intended to kill him by suffocating him with a pillow.”
No charges will be filed because California law prohibits children younger than 14 from being charged with murder. According to a county social services representative, the five-year-old and her four siblings are in state custody while Damien’s sister is at home with her family, which consists of a father who spent time in jail in 1995 for being under the influence of drugs and has two cases of domestic violence pending against him, a paternal grandmother who has an under the influence of drugs case pending and a mother who filed for divorce in July and was arrested the same month for battery, the charges later dismissed.
As the schizophrenic battle between the ideals of rehabilitation and reformation of both children and adults who are abused, neglected and/or commit offenses, and a hunger for blind retribution continues, the casualties continue to be children and the societal family structure. In making the choice to treat our children with the same criminal processes as adults, we must question why it is we are choosing to place such a burden on those it is the adult’s responsibility to teach the morals and values of that society. And as a case such as the Stiffler family points out, can we afford to ignore the very reasons which bring children before the court in the first place?