The history of juvenile justice in the United States contains contradictory and competing ideas about juvenile delinquency and its solutions. Hence, juvenile justice policies have shifted along a continuum of incarceration at the one end and rehabilitation at the other. During times of moral panic over youth delinquency—which are often laced with racial fear and anxiety—the United States has shifted to an incarceration model that relies heavily on punitive policies of discipline. At other times, juvenile justice polices have embodied a model of rehabilitation that stresses support services and counseling for juveniles. Recently, one of the more controversial issues revolving around juvenile is whether juveniles who commit so-called adult crimes should be regarded as adults and subject to the same kinds of punishment or should be cared for as youths in need of treatment and understanding.
II. The Modern Period: From Deinstitutionalization to Getting Tough
III. Conditions of Confinement: Incarceration versus Rehabilitation
A. Guards and the Incarceration Model
B. The Incarceration Model and Abuse
C. Alternatives to Incarceration: The Shift to Rehabilitation
The first institution in the United States to address juvenile delinquency was the House of Refuge in New York City. Established in 1825, this institution held not only children convicted of crimes but also those whose only crime was living in poverty. Soon after the opening of the first House of Refuge, reformers opened similar houses in Boston and Philadelphia. The public justification for the Houses of Refuge was explicitly religious. Wealthy reformers believed that impoverished children lacked the proper Christian values and morals, including a strong work ethic and respect for authority. As a result, reformers designed the Houses of Refuge to reform youth through disciplined activity, prayer, work, and a heavily regimented day. On the one hand, the Houses of Refuge provided an alternative to the harsh conditions of adult jails and prisons, where children were frequently held. On the other hand, house residents were subjected to harsh training where corporal punishment and punitive working conditions were common.
Underneath the religious rhetoric of the conservative reformers was an intense fear of the poor, who, if organized, posed a threat to their class privilege. This gave rise to a widespread moral panic about rising juvenile delinquency among poor and working-class youth. At the time, massive economic disparity between the rich and poor profoundly shaped the social landscape. The industrial elite heavily exploited the labor of working-class and immigrant populations in the factories. Riots over working conditions were commonplace. The wealthy elite grew ever more weary and saw the Houses of Refuge as providing necessary reforms to control working-class youth (Krisberg 2005).
Since the construction of first House of Refuge, there has been contentious debate about how best to confront juvenile delinquency. Although the early reformers argued for institutionalization, others questioned the utility of institutions for children. In the 1850s, organizations like the Children’s Aid Society argued that the Houses of Refuge were likely to expose children to criminal behavior and lead to more crime. The Children’s Aid Society was part of a broader movement called the Child Savers, which argued that the Christian family was the ideal place to combat juvenile delinquency and socialize children. Child Saver organizations established programs to relocate children from the city to families in the west. These families, in theory, would raise the children with so-called proper Christian morals and values and offer better living conditions for the impoverished. In practice, however, the children’s new families often treated them as delinquent stepchildren and exploited their labor for profit (Krisberg 2005).
Although the Child Savers argued against institutionalization for white immigrants, they raised few questions about the institutionalization of Native American children in boarding schools and African American children on plantations. In fact, many Child Savers urged the government to provide more funding for the construction of boarding schools for Native American children. Given prevailing stereotypes, Child Savers argued that the Native American family was immoral, backward, and unfit to raise children. Boarding schools, they believed, were the proper place to socialize Native American children. The boarding schools forbade children to use their first language, severed family ties, and attempted to replace Native American culture with Protestant values and morals. Boarding school staff forced children to cut their hair upon arrival and adopt European American ways of dress and demeanor. In their attempts to reform Native American children, boarding schools often relied on violent forms of discipline, not unlike those found in the early Houses of Refuge (Finkelstein 2000).
Despite resistance to institutionalization, juvenile reform schools continued to grow in the cities, especially in the Northeast. Throughout the late 1800s, the state increasingly participated in the construction and management of reform schools. In 1899, Illinois established the first juvenile court charged with hearing all cases involving juveniles. The court was founded on the idea of parens patriae, which asserts that children are developmentally unlike adults. Given this, the state has a vested interest in protecting the welfare of children, who cannot protect themselves. Before 1899, the legal system made no formal distinction between adults and children (Austin and Irwin 2001). After the formation of the Illinois juvenile courts, other states soon followed. Juvenile courts sought to control juvenile delinquency through rehabilitation rather than punishment. The courts had the power to remove children from their homes and sentence them to training schools. Although rehabilitation was the goal, the training schools continued to feel like places of punishment to those confined.
Throughout the early 1900s, reformers continued to experiment with different strategies to control juvenile delinquency. With the rise of the social sciences, researchers explored the causes of delinquency and began to offer social policies based on systematic research. Early criminologists, like Cesare Lombroso, argued that criminality was genetic and traceable by studying the structure and shape of the human body. Biological explanations posited that if people were born criminal, attempts to rehabilitate them would inevitably fail. Other researchers, like William Healy, questioned the more biological explanations and instead argued that juvenile delinquency was a symptom of a child’s surroundings—their peers, family, and so on—which all affected their mental health.
The more environmental explanations for juvenile delinquency gathered strength with the creation of the Chicago School of Sociology. Sociologist Clifford Shaw systematically studied juvenile delinquency in Chicago during the 1930s. He argued that delinquency was the product of social disorganization in neighborhoods, which experienced a breakdown of more conventional institutions like the family and church. Informed by theories of social disorganization, the Chicago School helped to develop more preventative strategies to combat juvenile delinquency. Social workers were sent out into the community to organize residents and create community institutions that would prevent juvenile delinquency. For Shaw, reform schools were of limited value because they did not address the social causes of delinquency, specifically the structural breakdown of communities. The key to solving problems of juvenile delinquency was to strengthen community ties and institutions. Despite Shaw’s call for more preventative measures, juvenile institutions continued to grow throughout the 1940s and 1950s.
The Modern Period: From Deinstitutionalization to Getting Tough
The 1960s gave birth to a new wave of thinking about juvenile delinquency, which challenged the continued institutionalization of juveniles. With the rise of the Black Power movement, Chicano Movement, and American Indian Movement, community residents began to argue for more control over the institutions that confined their children. Many questioned the need for more juvenile institutions, which activists argued were not about rehabilitation or reform but rather about controlling and patrolling communities of color. The social uprisings of the 1960s provided the backdrop to the formation of more community-based solutions. Instead of removing children from the community to large-scale institutions, activists argued for more preventative programs, group homes, and transition homes.
Activist calls for deinstitutionalization came to fruition in 1972 when Jerome Miller, director of the Massachusetts Department of Youth Services, closed down all juvenile reform schools and transferred the children to smaller residential programs, where they received personalized counseling from trained professionals rather than punishment from prison guards. These new community-based programs were far more successful in reducing recidivism rates that the youth prisons that existed prior to 1972. Following in Miller’s footsteps, President Richard Nixon established the 1973 National Advisory Commission on Criminal Justice Standards and Goals. The commission recommended that all large-scale juvenile justice institutions be closed and replaced by more community-based programs (Mauer 1999). Juvenile prisons, the commission argued, were more likely to increase crime than to prevent it, because children rarely received the necessary rehabilitation in prison-like facilities. In institutions, children learned more about crime and developed a distaste for people in positions of authority, all of which increased the chances that they would reoffend. Nixon, however, disregarded the report, paving the way for increased use of juvenile prisons. Although various states continued to experiment with deinstitutionalization for juveniles, these efforts all but disappeared during the 1980s and 1990s, with the rise of the “get tough on crime” movement.
Although juvenile crime rates during the 1970s and early 1980s remained fairly constant, there was a substantial increase in juvenile crime from 1987 to 1994, especially crimes involving firearms. For example, teenage homicide rates doubled between 1985 and 1994 (National Criminal Justice Commision 1996). Conservative criminologists, academics, commentators, and politicians seized the opportunity to push a “get tough on crime” agenda that argued for less rehabilitation and more punishment. John DiIulio, a political scientist at Princeton, became an academic poster child for this movement when he coined the racially charged word superpredator. DiIulio, and a cohort of other conservative academics, used that word to describe a new kind of juvenile offender who was sociopathic, remorseless, and very dangerous. DiIulio’s argument, fraught with racial stereotypes, maintained that the new youthful offender lacked a moral conscience and values.
This framing of youth crime is reminiscent of how the early reformers framed white immigrant youth during the creation of the Houses of Refuge. DiIulio warned that, by the year 2010, nearly 270,000 superpredators would be roaming the streets, resulting in an unprecedented crime wave. This stoked the already burning flames of racial and class anxiety and thus served to justify new laws and penalties for juvenile offenders. Rehabilitation, conservatives argued, would not work with this new type of juvenile offender. The media ran with the story. Every school shooting, juvenile homicide, and violent crime became a testament to the rise of the superpredator, which became a racially imbued code word for children of color in the inner city. By 1994, nearly 40 percent of all print news that covered children was about crime and violence, mostly involving children of color (Hancock 2000).
Time, however, did not lend much support to DiIulio’s thesis of the superpredator. Crime rates began to drop after 1994, and the crime wave he had predicted never hit. In fact, juvenile crime rates have continued to drop. Moreover, DiIulio’s description of a new kind of juvenile delinquent failed to match the data on incarcerated children. Of the 106,000 children in secure facilities in 1997, the overwhelming majority were incarcerated for nonviolent offenses. Thirty-six percent of juveniles were incarcerated for crimes against persons. Only 2 percent of incarcerated children had committed homicide, and 6 percent committed sexual assault. The majority of incarcerated children, or 73 percent, had committed nonviolent offenses. Property offenses, like auto theft and shoplifting, accounted for 32 percent. Drug offenses accounted for 9 percent, mostly for drug possession. Public order violations, like being drunk in public, accounted for 10 percent. Technical violations of patrol accounted for 13 percent (Office of Juvenile Justice and Delinquency Prevention 1999).
This portrait of incarcerated children is a far cry from the myth of the violent superpredator. Nonetheless, politicians continued to sound the alarm. By capitalizing on the public’s racial anxiety and fear of crime, politicians seized their newly found political capital to win elections. This paved the way to making the juvenile justice system of the United States one of the most punitive in the world and one of the largest incarcerators of children.
Moreover, the 1980s and 1990s saw the passing of several punitive laws designed to target youth crime at the federal, state, and local levels. At the federal level, the Violent and Repeat Juvenile Offender Act of 1997 encouraged more prosecution of juvenile offenders, increased penalties for gang-related offenses, and increased the use of mandatory minimums for juvenile offenders. At the state level, an increasing number of states passed laws to lower the age at which juveniles could be tried as adults. Some states allowed children as young as 14 years of age to be tried in adult criminal courts. In 2000, California, for example, passed Proposition 21, the Juvenile Crime Initiative, which increased the penalties for gang-related felonies; mandated indeterminate life sentences for carjacking, drive-by shootings, and home invasion robbery; made gang recruitment a felony; and required adult trials for children as young as 14 charged with serious sex offenses and murder. Proposition 21 passed with 62 percent of the vote, even though crime rates among juveniles had decreased during the previous six years.
At the local level, city prosecutors sought restraining orders against specific gangs in the community. These orders are known as gang injunctions and prohibit actions like walking down the street in groups of four or more, wearing certain kinds of clothes, and associating with other gang members. These activities are not crimes in any other neighborhoods except those where injunctions apply. Those who violate these rules can be held for violating a court order, resulting in up to six months in jail for participating in illegal activities. Moreover, those convicted of gang-related felonies face additional penalties aside from the actual crime for being in contempt of court for violating the restraining orders.
Los Angeles, for example, has nearly 30 gang injunctions that target more than 35 different gangs, nearly all of them comprising people of color. Although police departments praise gang injunctions as a vital tool in their war on gangs, the use of gang injunctions has raised questions among civil rights advocates because they overwhelmingly target people of color. The use of gang injunctions is quite similar to the way in which white southerners used the Black Codes to criminalize and incarcerate large numbers of recently freed African Americans after the abolition of slavery. Black Codes included laws against loitering, socializing in large groups, and vagrancy that applied only to African Americans, much as restraining orders apply only to specific communities (Bennett 1993).
A massive increase in the number of children of color in the juvenile justice system has accompanied these new federal, state, and local “get tough” policies. Although African Americans represent roughly 13 percent of the population, they make up nearly 40 percent of all incarcerated children. Latinos represent 13 percent of the general population but 21 percent of incarcerated children in public institutions. Native Americans also have a high rate of incarceration, but because of their relatively low numbers in the general population, they represent only 1 percent of the incarcerated population. Asians and Pacific Islanders account for 2 percent of the incarcerated population. These low numbers, however, mask the high incarceration rates of Cambodian, Laotian, Hmong, and Samoan children (Office of Juvenile Justice and Delinquency Prevision 1999).
These statistics reflect widespread institutional racism within the juvenile justice system. According to the 2007 report And Justice for Some, by the National Council on Crime and Delinquency, Latino and African American youth are far more likely to be incarcerated in state institutions, even when controlling for the type of offense and prior records. Latino youth are three times more likely to be incarcerated than their white counterparts and spend 112 days longer in secure settings than their white counterparts. African American children are six times more likely to be incarcerated and spend, on average, 61 more days confined than their white counterparts (National Council on Crime and Delinquency 2007). Moreover, although white children are more likely to use drugs, children of color are three times more likely to be incarcerated for drug crimes (Krisberg 2005).
Conditions of Confinement: Incarceration versus Rehabilitation
Children awaiting trial are often confined to juvenile detention centers located in their communities. Once children are sentenced, they are usually transferred to state institutions located in rural communities far away from their homes. Secure institutions for juveniles, whether detention centers or youth prisons, vary greatly depending on the state. Most states base their juvenile justice policies on the incarceration model and confine youth to large, prison-like institutions equipped with cells, steel doors, and heavy locks. Services and rehabilitation programs are scarce, because the goal of rehabilitation has been replaced with that of punishment. Other states, however, organize juvenile justice around policies of rehabilitation and run smaller, community-based institutions that offer substantial counseling and rehabilitation programming.
Under the incarceration model, juvenile detention centers and youth prisons treat their captives as human objects to be worked upon, shaped, and molded to meet institutional demands. Much like the early Houses of Refuge, juvenile detention centers and prisons strictly enforce obedience, passivity, and deference to people in positions of authority. In juvenile detention centers and youth prisons, children are subjected to a series of rules and punishments that, in theory, are supposed to help reform their behavior.
Behavior management programs are often used to achieve these ends. Such programs outline all institutionally acceptable and unacceptable behaviors and impose an artificial hierarchy on the youth, marking those with and those without certain privileges. If a child follows all the rules and obeys the instructions of the guards, they are rewarded with extra time out of their cells, later bedtimes, and more access to the phone.
If children break these institutional rules or defy the orders of the guards, they may be punished with cell confinement, which in theory should last anywhere from eight hours to three days but in reality may last for several months.
If a child, for example, has a pencil in his or her cell, or if he or she possesses more than five books, the child may be locked in the cell for 16 hours. If a child tucks his or her pants into socks or is found with sagging counting blues (baggy blue jeans), he or she may be locked in the cells for two days. If a child floods the cell, he or she may be locked in the cell for a minimum of three days, with additional punishment depending on behavior while confined (Bickel 2004).
Grounded in simple operant conditioning, the underlying assumption of this system, known as the level system, is that if compliance is rewarded and noncompliance punished, the youth, like mice in a Skinner box, will eventually learn to adhere to the rules of the institution and, by extension, those of society. Although the level system is the primary tool of social control inside the secured walls, it is justified on the grounds that if children can be trained to follow rules inside the detention facility, these newly instilled values will follow them once they leave it.
Depending on the institution, children may spend their time housed in large barracks- style housing units or in cells similar to those used to house adults in prisons: seven- by eight-foot cinderblock rooms each containing a bed, a stainless steel sink and toilet, and a steel door with a narrow window. On average, children spend nearly 14 hours a day inside their cells. When they are confined to cells for long periods of time, children often feel angry, frustrated, and bored, leading many to conclude that they are merely being warehoused (Bickel 2004). The stringent rules and punishments exacerbate these feelings among detained and incarcerated youth and set the stage for intense conflict between the confined and the confiners, or guards, who must enforce the rules and impose punishments.
Guards and the Incarceration Model
Guards work in juvenile facilities for a variety of reasons. Some want to work with children and counsel them. Others, however, work in juvenile institutions because such jobs provide a stable and secure source of income. Guards come from all walks of life. Some are college graduates, others are retired from the military, and others are high school graduates. Increasingly, states require that guards have at least a college education or military experience. Few guards, however, have significant training dealing with incarcerated children, especially those in large, prison-like institutions that operate under the incarceration model.
The training that guards receive varies from state to state but usually consists of a stint in a training academy and a probationary period of on-the-job training. In Washington, for example, new recruits must attend a two-week training academy course at some time during their six-month probationary period of employment. At the academy, guards learn how to observe the children, use disciplinary techniques, and use physical force. During this training, guards learn to always be on the alert in dealing with detained and incarcerated children. Implicit and sometime explicit in their training is the assumption that the children are, at best, troubled and, at worst, downright dangerous. The Washington State Juvenile Workers Handbook, for example, warns new recruits that “the first step in preparing to deal with offenders is to understand the sociopathic personality” (Criminal Justice Training Commission n.d.) The handbook, then, lists characteristics of the so-called sociopathic personality, reminiscent of DiIulio’s myth of the superpredator: irresponsible, self-centered, feels little or no guilt, sees staff as objects for exploitation, compulsive liar, strong drive for immediate gratification, and adept at manipulation. “You must recognize that a majority of the offender population will be sociopathic to some degree,” the handbook warns (Criminal Justice Training Commission n.d.).
Although guards are taught to be deeply suspicious of the children, they are offered little education on how larger social forces shape the children’s response to the justice system. Guards, for example, are not taught about the effects of poverty or racism on the lives of detained children, nor is there any discussion of how racial and class biases affect how guards interact with and perceive their charges. In short, guards leave the academy ill prepared to deal with incarcerated children in any way except as potential threats. They are taught little that might help them bridge the gap between the two warring worlds found in most juvenile detention centers and youth prisons.
Rather than teaching understanding and building bridges between the guards and children, the academy trains guards to distrust incarcerated youth at every turn, thus exacerbating the conflict between the two sides (Bickel 2004).
The Incarceration Model and Abuse
On April 1, 2003, cameras caught two juvenile prison guards physically assaulting two children in a Stockton, California, youth facility. One guard punched a child in his head and face more than 28 times while the child was in a fetal position, arms protecting his head. Aside from the repeated closed-fist punches, guards dropped their knees with heavy force several times on the back of the child’s head and neck. Although the incident was caught on tape, the county district attorney dropped all charges against the guards.
This incident, coupled with increasing public scrutiny of the California Youth Authority (CYA), led to an intensive review of juvenile prisons in the state. The CYA is one of the largest justice systems in the United States, housing more than 4,300 youth, 84 percent of whom are children of color. The CYA relies heavily on the incarceration model to structure institutional policies and practices. Barry Krisberg, director of the National Council on Crime and Delinquency, released his report of the CYA in December 2003. Krisberg found extensive abuse in the six CYA institutions he investigated.
During the first four months of 2003, one state institution documented more than 535 incidents of the use of chemical restraints, such as mace and pepper spray. Mace and pepper spray are used throughout juvenile facilities in the United States and are usually used to break up large disturbances. The 2003 review of the CYA, however, found that chemical restraints were frequently used to remove children from their cells, even when there was no clear reason to do so. Guards refused to allow many children to wash off the chemicals, leaving severe chemical burns on their skin. During the same four-month period, there were 109 incidents involving physical restraints and 236 incidents involving mechanical restraints. Mechanical restrains involve forcing children to rest on their knees for long periods of time with their hands bound behind their backs (Krisberg 2003).
Aside from the use of chemical, physical, and mechanical restraints, Krisberg also found that 10 percent to 12 percent of the youths were housed in restrictive facilities where they spent 23 hours a day in their cells, with one hour out for recreation. Often, during that one hour of recreation, children were chained in five-point restraints, with ankles locked together and wrists locked to the waist, making it difficult to exercise. Other children were released to small cages called Special Program Areas.
In addition to abuse at the hands of guards, Krisberg also found significant ward-onward violence in the CYA. In the six institutions he studied, there were more than 4,000 ward-on-ward physical assaults and 1,000 cases of sexual harassment. This averages to about 10 assaults per day in six institutions having a combined total population of 3,800 youths. The 2003 CYA review highlights the rampant violence that youths experience from both guards and other inmates. Although the CYA is one of the larger and more violent youth prison systems in the United States, there is no doubt that violence looms large in the minds of all children who are incarcerated (Krisberg 2003).
The push toward incarcerating more juveniles in secure facilities has produced some troubling results. If the success of incarceration strategies is measured by how many children are rearrested after their release, then most states that operate under the incarceration model are failing miserably. In California, for example, nearly 91 percent of those released from the CYA are arrested within three years (Center for Juvenile and Criminal Justice 2007). In Pennsylvania, nearly 55 percent are rearrested within 18 months, and in Utah, 79 percent are rearrested within a year (Krisberg 2005). These failure rates, coupled with media stories of abuse, have led some organizations to call for a shift from the incarceration model to a rehabilitation model. Organizations like Books Not Bars of Oakland, California, organize formerly incarcerated youth and their parents to protest the continued operation and expansion of large-scale youth prisons. Through protests and political lobbying, Books Not Bars pressures local and state officials to close the large institutions and replace them with smaller facilities that focus on rehabilitation. Their efforts, along with the efforts of other youth justice organizations, have led to a significant drop in the number of youths confined in the CYA.
Alternatives to Incarceration: The Shift to Rehabilitation
Activist demands to close large-scale youth prisons and jails echo the child advocates of the 1930s and 1960s, who challenged the increasing reliance on juvenile institutionalization. Some states, like Missouri, have cast aside the incarceration model in favor of a rehabilitation model that relies heavily on preventative programs, alternatives to incarceration, and community-based solutions. In 1983, Missouri closed its large institutions for juveniles and opened several small community-based rehabilitation centers throughout the state, where residents could be located closer to home. Although most states have facilities that house 100 or more youths, Missouri’s institutions house no more than 36 children per facility (Missouri Division of Youth Services 2000). Missouri also has a number of different types of facilities, ranging from small, secure institutions to group homes to day treatment centers.
Unlike the large youth prison of other states, Missouri’s secure facilities have no cells or barracks-style housing units. Instead, the children are housed in dormitory settings and are allowed to wear their own clothing rather than institutional uniforms. Guards are replaced with college graduates who receive specialized training on how best to interact with the children they supervise. As a result, Missouri experiences far less conflict between staff and the youths, paving the way for supportive relationships to develop. Moreover, rather than being closed institutions, community organizations are a vital part of the programming, as children are allowed to leave the facilities to work in the community on supervised projects. Missouri also has several group homes where children charged with less serious offenses are held. In these homes, youths are allowed to attend school and work outside of the facility.
Missouri’s rehabilitation model has been far more successful than those in other states. The recidivism rate in Missouri is far lower than those of California, Utah, and Pennsylvania. Only 9 percent of the youths are reincarcerated in juvenile or adult facilities after their release (Missouri Division of Youth Services 2000). Moreover, because the facilities in Missouri do not rely heavily on guards, the security costs to run them are far lower than those of other states. Whereas California spends nearly $80,000 to house a child in the CYA, Missouri spends $40,000, with far better results. Missouri continues to be a model for other states and may signal a future shift in national juvenile justice policies.
The history of juvenile justice in the United States has revolved around several competing approaches to dealing with juvenile delinquency. From the early calls for confi nement within Houses of Refuge to the more recent demands for deinstitutionalization in Massachusetts and Missouri, juvenile justice has always shifted and changed with the times. During periods of moral panic laced with racial anxiety and fear, the United States has moved toward punitive strategies that expose children, especially children of color, to systemic violence and abuse. As youth advocates and activists highlight the failure of more punitive polices, however, states are beginning to search for more effective strategies that move from incarceration to rehabilitation.
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