Burning Down the House : The End of Juvenile Prison (9781595589668) (8 page)

In passing the act, the Illinois legislature formalized the means by which children might be placed in training schools, providing legal cover for practices that were already widespread.

The legal justification for vesting the state with the power to determine what was best for (certain) children was drawn from a doctrine known as
parens patriae
, or “the state as parent.” Derived from English common law, parens patriae was a vestige of the feudal notion of obligations and powers
belonging to the king and was originally applied mainly to clear up issues of feudal succession or disperse the property of orphaned minors.

The broad authority judges assumed under parens patriae was based on a presumption of benevolence: the court's actions, however much they might impinge upon a child's freedom or the parental prerogative, were taken in the name of the child's best interest.

The tension between care and control—reflected to this day in the tug-of-war between rehabilitation and punishment—is not, as is sometimes assumed, of recent origin. It was woven into the fabric of the juvenile court from its very inception. On the one hand,
many judges did their best to advance the rehabilitative mandate—most famously Denver's Ben Lindsey, who advocated that judges develop a personal rapport with the youth who came before them, and play an active role in surrounding them with support, encouragement, and resources in an effort to boost first their self-esteem and then their prospects in the world.

On the other, the wide latitude granted judges to act in children's best interest, as those judges perceived it, meant that many children were deprived of their liberty without having committed any crime. One reform school investigation found that only one in ten residents had committed an offense serious enough to bring an adult before a judge. The superintendent of a Chicago reform school testified that
“courts considered what was best for the welfare of the children and made orders to that effect, often with no formal charge against these children and regardless of the severity of the crimes for which they had been arrested.”

Julian Mack, one of the first judges to preside over the Chicago Juvenile Court in the early twentieth century, revealed this tension in his 1909 effort to describe the new court's role:
“The child who must be brought into court should, of course, be made to know that he is face to face with the power of the state, but he should at the same time, and more emphatically, be made to feel that he is the object of its care and solicitude.”

Mack recommended various means of projecting the latter half of this mixed message:
“The judge on a bench, looking down upon the boy standing at the bar, can never evoke a proper sympathetic spirit. Seated at a desk, with the child at his side, where he can on occasion put his arm
around his shoulder and draw the lad to him, the judge, while losing none of his judicial dignity, will gain immensely in the effectiveness of his work.”

However solicitous the jurist, once a child passed through the gates of the institution to which his erstwhile protector remanded him, the “power of the state” hit him full force. According to a report from the Annie E. Casey foundation,
“From the very beginning . . . the implementation and practice of juvenile justice fell far short of its lofty ideals. The courts relied heavily on ‘reformatories,' later known as training schools, where conditions were often more severe and discipline far harsher than their rehabilitative mission implied.”

Like the House of Refuge, the
juvenile court was an instant sensation, spreading across the nation in the span of a generation. While the new court did spare some children the hardship of time in adult jails, it also provided a legal foundation for placing many more in training schools and other juvenile institutions (an operation previously executed on a more ad hoc basis) while skirting due-process protections.

When the juvenile court judge exercised his discretion, he was protected and empowered by the assumption that he was acting in the child's best interest. On the basis of this presumption, young people could be deprived of their liberty without the protections otherwise guaranteed by the Constitution. Over the following decades, a series of Supreme Court decisions (most notably
In re Gault
in 1967) extended some protections to juveniles—including the right to counsel and to confront their accusers—but others, like the right to a jury trial, remained out of reach.

Well before the Illinois Juvenile Court Law formalized its place in the American legal system, the doctrine of
parens patriae had been invoked to justify a child's commitment to a House of Refuge over a parent's explicit objection. In
Ex parte Crouse
(1838), the Pennsylvania Supreme Court rejected a father's challenge to the incarceration of his daughter Mary Ann, whose mother had found her “unruly and unmanageable” and handed her over to the Pennsylvania House of Refuge.

Ex parte Crouse
strengthened the legal justification for institutionalizing children who had committed no crime. It also made clear that
parens patriae trumped parenthood itself. In rejecting the father's plea for his
daughter's freedom and return to his custody, the court held that Mary Ann's constitutional rights were not being violated because she was being held for the purpose not of punishment but of “reformation.” If keeping her separate from “the corrupting influence of improper associates” also required separating her from her apparently loving father, that was incidental.

“To this end,” the court argued,

may not the natural parent, when unequal to the task of education, or unworthy of it be superseded by the
parens patriae
, or common guardian of the community? It is to be remembered that the public has a paramount interest in the virtue and knowledge of its members, and that, of strict right, the business of education belongs to it. . . . The infant has been snatched from a course which must have ended in confirmed depravity; and not only is the restraint of her person lawful, but it would be an act of extreme cruelty to release her from it.

As the late legal scholar Sanford Fox has noted,
Ex parte Crouse
“became the precedent for 20th Century cases holding that the juvenile court could similarly commit children without the traditional legal formalities.” the decision, legal scholar and advocate Barry Krisberg has observed,
“was heavily influenced by the antagonism toward Irish parents who were regarded as corrupt and ineffectual by more established Americans. The courts generally held that the traditional conceptions of criminal law did not apply to the Refuge. The overriding values involved protecting the social order from the potential threat posed by a growing army of impoverished youth.”

Understood in the context of the era, as well as the subsequent reality of its exercise, the doctrine of parens patriae had less to do with enforcing the state's obligation to children than with legitimizing its authority over them—an authority greater than that of the natural parent.
Once a child was committed to a House of Refuge, house managers generally maintained jurisdiction until he reached adulthood, although few were held that long; most were “bound” as apprentices or shipped out to live with, and labor for, farm families after a year or two of institutional life.

“Juvenile justice is replete with oxymorons,” Northwestern University's Bernardine Dohrn has written, “perhaps including juvenile justice itself. None, however, are more ironic than the reform school or the training school—these dismal places where children are incarcerated under the promise of education, learning, schooling. . . . The gap between goals and practice, rhetoric and reality, mandates and options, is enormous.”

Dohrn is pointing toward a central flaw in the American system of juvenile justice—a flaw that, despite the traditional narrative of a benevolent system later gone astray, was embedded in the juvenile court from its founding moment. The court had (and has) the power to take away a young person's freedom—the most powerful intervention, short of taking a life, available to the state—in the name of his “best interests” without offering him the basic constitutional protections guaranteed adults.

Advocates are not the only ones who have voiced concern about the gap between rhetoric and reality represented by the training schools. In the majority decision in
Kent v. United States
—a 1966 case that revolved around due process and waiver of juveniles to adult court—the supreme Court found “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.”

The definition of insanity is doing the same thing over and over and hoping for different results.

I heard this aphorism repeated many times by young people with firsthand experience of the juvenile justice system. Often, they were referring to the errors of their younger selves, not those of their keepers, but it seems an accurate analysis of the history of the training school as well.

For as long as houses of refuge and the like have been in business, inquiries of one sort or another have found them to be both corrupt and corrupting—detrimental, at best, to the children they are meant to serve. But rather than leading us to abandon a failed practice, these investigations have, in the main, inspired little more than further investigation—a cycle that continues to this day.

In 1920, for example, a children's advocacy group launched the first in what would be
a parade of investigations into the St. Charles Reformatory, established in Illinois in 1904. The report that followed, according to scholar Bernardine Dohrn, described “the repressed and joyless atmosphere, the rule of silence during meals, and an exhausted staff who worked 24 hours per day.” Most significantly, the report noted the failure of the Illinois training schools to provide any actual training to their young inmates.

Just over a decade later, a 1931 legislative report on the St. Charles Reformatory found similar problems and worse. On top of the overcrowding and second-rate education, this next round of investigators found,
the staff believed that a fourth of the boys should not be there at all.

The saga continued. By 1939, overcrowding and a “crisis of escapes and runaways” inspired legislative hearings.

In 1941, a boy at St. Charles was beaten to death by two house fathers, an event that inspired another investigation, this one conducted by a “blue ribbon committee.” The committee's investigation revealed a brutal environment in which boys were subjected to punishments that seemed the product of a sadistic imagination (“swabbing,” for example, in which staff filled a basement halfway up with water and forced the boys to soak it up with burlap and buckets before they were allowed food or rest). The committee ordered a variety of reforms—more recreation, staff training, and the like—but little evidence of actual improvement followed.

In 1949, yet another investigation found an “Impossible mixture of feeble-minded, psychotic, dependent, and aggressive delinquents in the same facility.”

“In the overall picture,” this round of investigators lamented, “we must face the tragic facts of neglect, of suffering, and of the waste of opportunities and money which could be prevented. . . . Conditions exist which reflect grave discredit on a state which had the vision, the progressive motivation, to enact the first Juvenile Court Law in our country.”

A half dozen investigations into conditions at the St. Charles Reformatory, in other words, had no perceptible outcome except continued decline. The 1949 report was issued on the fiftieth anniversary of the birth of the juvenile court.

Juvenile justice
reform
, it turns out, has been around almost as long as the juvenile prison. The scandals of today do not, after all, reflect the corruption of a once-grand mission. They are merely the latest in a long line of revelations of state-sanctioned child abuse that stretches back to the dawn of the juvenile prison.

3

OTHER PEOPLE'S CHILDREN

One of the underpinnings of the correction business has been that these kids are very different from the rest of us. That's one thing we have to hit head on. We have to change that attitude and stress that they are the same as the rest of us.

—Jerome Miller, former head of the Massachusetts Department of Youth Services

What the best and wisest parent wants for his own child, that must the community want for all of its children.

—John Dewey

“D
ON
'
T YOU GET SCARED
going into those places? Does it worry you ever—hanging out with those kids?”

I've been asked this question more times than I can count, in one form or another, all of which rests on the same central premise: that young prisoners are, without exception, Glock-carrying gangbangers, serial killers, carjackers, or rapists; that this is what it takes for a kid to get locked up in America. My interrogators have much in common with the American public, whose concept of the juvenile offender is curated by the mass media, with their unremitting onslaught of aberrations and atrocities.

In fact, for poor kids of color, getting locked up takes appallingly little. Despite the abiding image of the juvenile offender as “super-predator,” young people are far more likely to be arrested for minor infractions than are adults. Even in large, state-run juvenile facilities—ostensibly reserved
for the “worst of the worst”—the majority have been sentenced for nonviolent acts.