Juvenile Justice in Double Jeopardy

The Distanced Community and Vengeful Retribution

The Honorable J Polier

• Publisher: Psychology Press
• Year: 2014
• Print ISBN: 9780805804621
• eBook ISBN: 9781317784487
• Topic: Psychology
• Subtopic: History & Theory in Psychology
• Index: Psychology

Throughout her entire career, Judge Polier continually fought for the rights and needs of the poor. In this volume she describes the granting and denial of justice toward the poor -- particluarly poor children -- she observed during her tenure as a Family Court Judge in New York City. The book discusses the current state of the justice system and the outlook for the future. This volume helps readers understand how broadly shared the responsibility for the neglect of today's youth is and how society must reshape its attitudes and realign its priorities to help the thousands of children who are dependent upon the public for care and support.

The book identifies how the courts have been weakened by their loss of direct contact with delinquent and neglected children and the "need for humanity and respect in dealing with difficult human problems." (from the introduction).

From her personal experiences and observations, Judge Polier describes the granting and denial of justice she observed while she consistently emphasizes the need for direct contact with delinquent and neglected children. For students, professional, and researchers in sociology, criminal justice, and any social science discipline dealing with children and children's problems, Polier's book provides a behind-the-scenes look at one of the major problems facing society today.

Chapter 1

Fifty Years of Changing Political Winds

For an intimate observer of any institution, there is always risk of exaggerating the obvious and not noting the less strident factors that make up the landscape. Yet, that risk is worth taking if it provides a portrait of what has gone on in the minds and actions of judges and the lives of youth rather than a photograph or set of statistical tables. Each decade for 50 years had had its ups and downs controlled by forces far beyond the administration of justice for children and youth in New York and throughout the country. Regardless of its virtues or faults, the Juvenile Courts have served as a sensitive barometer of community attitudes and political action that have governed the lives of millions of poor men, women, and children during the past half century.

Before the Creation of the Juvenile Court

Providing generously for children who are wards of the State has not been a popular public policy.¹

Law and practice enforced the “work ethic” harshly on poor children in early America. There were few who, with Thomas Jefferson, saw that premature labor of children presented the “flattering appearance of their being men while they were yet children, but ending in reducing them to be children when they should be men.” Being “tightfisted” toward the children of the poor was long regarded as a virtue, and reforms for poor children were couched in moralistic terms. Saving children through charity, protecting morality through discipline, and providing safeguards for property provided yeast for each recipe.

At the Creation

The Juvenile Court in the 1890s promised a clean break with the past. It would treat children as different from adults. Children would be removed from contact with adult offenders. The court was to discover and meet the needs of each neglected or dependent child. It was to discover why a child was moving down a delinquent path and redirect him.² The Juvenile Court judge was to be different from other judges. In the words of one of its eminent founders, Judge Julian W. Mack, the judge was to act as a wise, kindly, and effective parent. It was even envisioned that the replacement of punishment by rehabilitation of children would provide a new model for individualized justice to the adult Criminal Court system.

At law school in the 1920s this enticing picture of the opportunity to do justice was not marred by the realities that shadowed the vision. No one spoke of the staggering caseloads, of the niggardly resources provided by states, of the powerful forces that had bent the court to comply with the status quo, of racial injustice, or of the double standard of morality for the poor and the nonpoor. The absence of social legislation was still a source of pride in this country.

Before the 1930 epoch of law and social action, the Juvenile Court held out special charms. Legislation in Illinois had authorized the court to provide aid to poor children in their homes under the doctrine of parens patriae, or the state as a substitute parent,³ although this program was attacked as an entering wedge for socialism. The judges were not to be cloaked in robes. They were to sit at a table with children and parents rather than look down from on high. They were to call on the burgeoning social sciences for guidance in decision making. Unlike the august Chancery Court in England, the Juvenile Court in the United States would not limit its jurisdiction to children with property.

After a few years as a referee in Workmen’s Compensation (the first social legislation to be held constitutional) and as counsel to the Emergency Relief Bureau in New York, I believed that the Juvenile Court would offer an oasis in the legal landscape. It took time to realize that the Juvenile Court was an insignificant off-shore island in the eyes of the higher echelons of the judiciary system, the organized bar, and officials who appropriated funding. There was little general interest except when a shocking case of physical abuse or violent delinquency was leaked to the press. The oasis had become a desert populated only by the very poor and a small band of people designated to aid them. Only a few benevolent tourists came from time to time, but they did not stay for long. The urgent problems of each day, at first, obscured how powerful political trade winds determined what a Juvenile Court could or would try to do.

One bequest to juvenile justice survived from the Elizabethan Poor Law of 1662 that denied aid to poor children without legal residence in a state. In 1964, half of the states in this country still had compulsory removal statutes for nonresidents “who were or were likely to become public charges,” and 39 states had residence requirements for welfare assistance. Under reciprocal state agreements, delinquent youths were denied the opportunity to live with relatives in other states who were ready and eager to receive them. Similar restrictions were used against the movement of neglected and dependent children.

In 1965, the mother of Jane, aged 3, had died. Her father was in prison under a long sentence and there was no one in New York to care for her. Cousins took her directly from the mother’s funeral to their home in Michigan, but that state demanded that the Juvenile Court in New York provide a bond that she would not become a dependent, under threat of returning her to New York. The New York Department of Welfare agreed that a bond was required under an interstate compact.⁴ When I refused to sign the bond, as an unconstitutional interference with this child’s right to travel, Michigan threatened to appeal but did not do so. Jane was later adopted by her Michigan cousins.

Such bans to prevent poor children from moving across state lines had been continued despite a 1941 Supreme Court decision that a California statute making it a crime to bring an indigent person into the state violated the commerce clause.⁵ At that time, however, it was only the concurring opinion of Justice Douglas (joined by Justices Black and Murphy) that proclaimed the right of Americans to travel freely. This viewpoint was slow to affect the decisions of welfare departments and Juvenile Courts that dealt with poor children.

A Poor Man’s Court

The support of the poor is in all countries a burden, and the object of legislators is to make that burden as little felt by the industrious citizens as possible.⁶

Traditional attitudes toward the poor reached into every crevice in the administration of juvenile justice. Parents seeking aid and youth charged with offenses sat for hours in airless waiting rooms. Noisy verbal and physical battles had to be broken up by court attendants. The hard benches on which everyone was forced to sit and the atmosphere, like that in lower Criminal Courts, resembled bullpens more than a court for human beings. When air conditioners were introduced they were first installed in courtrooms and judicial chambers, rather than in the stifling waiting rooms.

The workload of a judge, often 100 cases a day in the 1930s, demanded speedy dispositions of the living poor, not unlike disposition of the dead during a plague. Because it was assumed that any judge could do justice to a child, the rotation of judges allowed shuffling of a child’s case among as many as a dozen judges over a period of months. The child became known to court attendants but was a stranger to each judge—just one more child slipped into and lost in an ever fattening court file. Like the youngest child in a big family, delinquent and neglected children were served the leftovers from the table of justice.⁷

Juvenile Courts were bowed down by disabilities imposed by law and custom on all institutions for the poor. They were often lodged in old, ramshackle buildings. Decor and decorum were lacking. In 1964, a distinguished newspaper commentator, after visiting the New York Family Court, wrote: “It is a poor man’s court. Lawyers are rare and courtrooms are bare, toilet walls are defaced. The court’s waiting rooms resemble those at hospital clinics. Negro and Puerto Rican families predominate, and many regard the trappings of justice with bitterness or suspicion.”⁸

From its inception, Juvenile Court judges were also subjected to discriminatory treatment. They received less compensation than judges appointed or elected to other courts. They were given no law clerks and were not expected to write opinions. In New York, neither law reports nor legal periodicals were provided for their use. Until the 1960s the only book provided in each part of the court was the Gideon Bible presented by a devout Lutheran colleague.

Most destructive was the scarcity of personnel to work with children or families. Professionally trained staff were few in number. Although probation officers were described as guides, philosophers, and friends to youth, they too were demeaned. Their compensation was below that for sanitation workers as well as for probation officers in other courts, and there were few qualifications required for their work. The National Council on Crime and Delinquency (NCCD) survey in the 1960s reported that 8% of the counties in the United States had no minimum educational requirements for probation officers, 14% required only high school graduation, and 74% required college graduation but no specialized preparation. Only 4% required a graduate degree.

Few courts had probation officers to work with delinquent children returned home afterplacement, a strategic time to help them readjust to community life. A national study by the National Council on Crime and Delinquency reported that it was not uncommon for 250 children to be assigned to two or three after-care staff.

Subtle undermining of juvenile justice was condoned by both the higher judiciary and the bar. Words of appreciation for the work of the Juvenile Court were largely limited to ceremonial occasions. They offered no more lasting benefits than Thanksgiving baskets for the poor. In 1956, after studying how to improve the courts in New York State, the Temporary Commission agreed that the time of State Supreme Court judges was too valuable to spend on Family Court issues. In this same period the jurisdiction of the Family Court was enlarged to relieve the Supreme Court of some burdensome cases involving support and custody issues. One Appellate judge told that the first advice given by colleagues, when he went on the State Supreme Court, was to avoid custody cases, because once assigned, they pursued the judge forever.

In their isolation from the problems of youth before the Family Court, the higher judicial hierarchy generally focused on administrative reforms that would not require substantial new funding for services. The response of the Family Court administration to demands for greater efficiency was to create separate parts for preliminary hearings, for neglect and delinquency cases, for child abuse cases, for adoption, for review of placements, for termination of parental rights, and for youths charged with felonies. Such “reforms” negated the promise of comprehensive treatment of all family problems envisioned by the Family Court Act of 1962.

Political Winds

As an insignificant part of the judiciary, the Juvenile Court was especially vulnerable to shifting winds, whether favorable or hostile to the poor.

In the 1930s well-meant requests that a child be removed from the family home only because of poverty were constant. Like other judges, I felt forced to acquiesce, knowing that such actions had neither justification nor any alternative. A self-rescue operation allowed me to concentrate on the small number of cases in which I could secure aid without disruption of families mired in despair. Later, as New Deal legislation provided aid for more children in their own homes, happier endings were made possible.

To challenge traditional abuses of power exercised by public officials as well as charitable organizations that demanded compliance with their rules remained an ongoing necessity. On a single court day, children in four families were brought before the court for placement. In the first, the family had suffered eviction because of an error by the welfare district, an error it had failed to correct. In the second, welfare had been suspended due to conflicting, unchecked medical reports about the father’s ability to work. In the third, welfare had been refused because the welfare district believed a widowed mother must have had other resources because she had waited “too long” to seek aid after losing her job. This proud woman had waited until she had sold her last piece of furniture. In the fourth case, the mother of two children had dared to report that the welfare worker had demanded a bribe. Each case demanded long questioning by the judge to secure a return of welfare aid and to prevent removal of the children.

Some judges felt such investigatory procedures from the bench were not an appropriate function for a judge. They, also, had little patience for judges who sat for long hours listening to the miseries of those who came before them, when there was so little they could do. They remained aloof from the few activist judges who appeared at legislative hearings to seek more adequate budgets or who joined citizen groups to battle against racial discrimination. Differences in viewpoints on the proper role of the judge were smothered by a polite silence on substantive problems in discussions with one another.

The 1940s: War and Demands for Conformity

The 1940s were not auspicious years for justice to poor children. With preparation for war and the coming of war, more fathers were enlisted in the armed services, and more mothers and fathers went to work. There was little interest in the growing numbers of neglected and delinquent children left to fend for themselves. Staff in the courts were depleted. Even Mayor LaGuardia, generally sympathetic to the needs of children, rejected funding mental health services with the curt comment that children needed Borden-Sheffield (milk) rather than Binet-Simon (psychological tests). Deterioriation of services became so widespread that one distinguished federal administrator found it necessary to urge the individual states to do more to help parents and relatives care for children in times of family stress.⁹

Demands for proof of patriotism and conformity during this period reached the courts in many ways. The Acting Presiding Justice¹⁰ in New York rejected desperately needed volunteers from a Harlem organization, saying that the leader of this group had been an “extremely tenacious witness” in a case he had heard 1 year earlier.¹¹ When children rioted against outrageous conditions at the Manhattan Society for the Prevention of Cruelty to Children, they were carted off, without notice to families, to an adult jail at night by order of this same judge. A well-qualified applicant for a civil service position in probation was rejected on the grounds that he had been a conscientious objector. The Court Administrator wrote that returning veterans were better suited to inspire youth with “patriotism and self-restraint.”¹²

Attacks on welfare recipients intensified soon after the end of the war. Unmarried mothers and their children were special targets for contempt. At one meeting of charitable women, after I had spoken about the injustice of attacks against mothers on ADC, Dick Gregory, engaged to entertain the group, stopped on his way to the platform. He shocked the comfortable audience by announcing: “I am an ADC child.” He then told how his struggling mother had brought home a pair of shoes discarded by a boy who had outgrown them. The next morning he pr...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Foreword by Robert H. Bremner
• Preface
• Acknowledgments
• Publication Note
• Chapter 1 Fifty Years of Changing Political Winds
• Chapter 2 For Delinquents: The Tail End of Justice
• Chapter 3 The Drive for Punishment: Violence Against Youth
• Chapter 4 Neglected and Abused Children
• Chapter 5 The Search for Permanence
• Chapter 6 The Unmarried Mother, Illegitimacy, and Adoption
• Chapter 7 Sex and the Double Standard
• Chapter 8 The Ups and Downs of Mental Health
• Chapter 9 Religious Separatism
• Chapter 10 Racial Discrimination
• Chapter 11 Postscript for the Future
• Chapter Notes
• Index