The Evolution of the Juvenile Court

Race, Politics, and the Criminalizing of Juvenile Justice

Barry C. Feld

• Publisher: NYU Press
• Year: 2017
• ISBN:
  9781479802777
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

A major statement on the juvenile justice system by one of America’s leading experts The juvenile court lies at the intersection of youth policy and crime policy. Its institutional practices reflect our changing ideas about children and crime control. The Evolution of the Juvenile Court provides a sweeping overview of the American juvenile justice system’s development and change over the past century. Noted law professor and criminologist Barry C. Feld places special emphasis on changes over the last 25 years—the ascendance of get tough crime policies and the more recent Supreme Court recognition that “children are different.” Feld’s comprehensive historical analyses trace juvenile courts’ evolution though four periods—the original Progressive Era, the Due Process Revolution in the 1960s, the Get Tough Era of the 1980s and 1990s, and today’s Kids Are Different era. In each period, changes in the economy, cities, families, race and ethnicity, and politics have shaped juvenile courts’ policies and practices. Changes in juvenile courts’ ends and means—substance and procedure—reflect shifting notions of children’s culpability and competence. The Evolution of the Juvenile Court examines how conservative politicians used coded racial appeals to advocate get tough policies that equated children with adults and more recent Supreme Court decisions that draw on developmental psychology and neuroscience research to bolster its conclusions about youths’ reduced criminal responsibility and diminished competence. Feld draws on lessons from the past to envision a new, developmentally appropriate justice system for children. Ultimately, providing justice for children requires structural changes to reduce social and economic inequality—concentrated poverty in segregated urban areas—that disproportionately expose children of color to juvenile courts’ punitive policies. Historical, prescriptive, and analytical, The Evolution of the Juvenile Court evaluates the author’s past recommendations to abolish juvenile courts in light of this new evidence, and concludes that separate, but reformed, juvenile courts are necessary to protect children who commit crimes and facilitate their successful transition to adulthood.

PART I

The Progressive Era

1

The Progressive Juvenile Court

Progressive reformers who created juvenile courts at the end of the nineteenth century culminated an ideological and legal differentiation of youths from adults that began centuries earlier.1 Urban upper- and middle-class child-savers embraced an ideal of children’s innocence and vulnerability that emerged during America’s transition from an agricultural to an industrial economy. Because children lacked adult reason or legal capacity, their parents and the state had to educate them and prepare them for citizenship. Progressive reformers adopted a more modern and scientific conception of crime control—positivist criminology—that sought to identify the causes of criminality and to treat rather than punish offenders. Juvenile courts combined the new vision of children with new strategies of crime control to remove children from the criminal justice system—a diversionary rationale—to provide a rehabilitative alternative to criminal punishment—an interventionist rationale—and to enforce the newer conception of childhood.

This separate system simultaneously affirmed families’ role in raising their children in conformity with the new ideas of childhood and expanded the state’s prerogative to act as parens patriae—super-parent—and to control those who failed to do so. Because some parents did not subscribe to Progressives’ views of child rearing, one of juvenile courts’ functions was to control and regulate poor and immigrant families and youths. At their inception, reformers intended juvenile courts to assimilate and Americanize children of the Southern and Eastern European immigrants pouring into Eastern and Midwestern cities. At that time, they did not view Black children—most of whom still lived in the rural South—with the same solicitude accorded white ethnic youths in the North.2

This chapter first examines how modernization and industrialization attracted immigrants and altered the organization of cities. It then assays how modernization affected families and changed the social construction of childhood. The Progressive movement arose to control and administer social change associated with modernization and to assimilate and acculturate immigrants flooding into industrial cities. Progressive reformers drew on new ideologies of crime control—positivist criminology—to divert children from the criminal justice and to create a judicial-welfare hybrid to rehabilitate and control them. Juvenile courts rejected the trappings of criminal courts and used informal processes to identify children’s needs. They created a two-track system of probation and institutional confinement that discriminated between “our children” and “other people’s children.”

Modernization: Industrialization, Immigration, and Urbanization

In the decades after the Civil War, economic modernization transformed America from a rural, agrarian, Anglo-Protestant society into a more ethnically diverse, urban, and industrial one.3 Between 1870 and World War I, a national network of railroads fostered economic growth, changed manufacturing processes, and stimulated rapid development. Railroads connected and created national markets and expanded opportunities for large-scale manufacturing, mining, construction, trade, finance, and transportation.4 Techniques of mass production enabled unskilled workers on assembly lines to boost industrial output. As industries grew, corporations increasingly dominated the economy. A new, better-educated class of managers, professionals, and engineers staffed burgeoning industries, worked within bureaucratic settings, and developed technocratic solutions to economic problems.

Expanded manufacturing and economic opportunities attracted new immigrants. Between 1890 and 1910, the numbers and countries of origin of European immigrants changed significantly. A trickle became a flood as more than one million immigrants per year entered the country between the 1890s and the outbreak of World War I. America’s population nearly doubled between 1885 and 1915 and by 1920, immigrants or their children comprised about half the residents of the larger cities.5 The populations of many cities doubled from one decade to the next, accompanied by sharp social dislocations, poverty, inequality, and increased crime.6 The language, religion, and culture of the new immigrants from Southern and Eastern Europe differed from those of the Anglo-Protestant settlers who had preceded them.7 They crowded into ethnic enclaves and slums around industrial centers. They threatened America’s linguistic, cultural, and ethnic homogeneity and posed challenges of assimilation and acculturation for those whose forebears had arrived a few generations earlier.8

Industrialization, internal migration from the countryside, and European immigration altered the structure of cities. Previously, residential areas remained socially and economically heterogeneous. Most people lived within walking distance of their work, and social, economic, and ethnic residential segregation did not separate well-to-do people from poor ones.9 With industrialization, urban density increased as new immigrants packed into ethnic ghettos and middle-class and wealthier peopled moved to emerging suburbs.10 The overwhelming numbers, spatial segregation, and linguistic and cultural differences of the newer immigrants hindered their assimilation.11 Many came from rural backgrounds and subscribed to traditional ideas of childhood in which children worked and participated in adult activities. Progressive child-savers’ cultural construction of childhood clashed with that of immigrant parents who could not afford prolonged child dependency.12

Modern Family and Childhood

The transition from an agricultural to an industrial society shifted work from household-based economies to industries, contributed to a privatizing of family life, and modified the roles of women and children.13 Children have less economic value in an industrial society than in an agricultural one in which they can work as farm hands. The shift from family farms or shops to factories affected the number and spacing of children.14 The idea of childhood is socially constructed, specifies the social, emotional, and intellectual properties that people believe distinguish children from adults, and changes in response to other social forces.15

Until relatively recently, people viewed children as small adults who should be quickly integrated into grownup economic and social roles.16 Only within the past two or three centuries did Western societies begin to distinguish the ages between infancy and adulthood as separate developmental periods.17 In the more modern view, children are not miniature adults, childhood and adolescence represent separate developmental stages, and parents invest greater resources in rearing children.18 Philippe Aries traced the modernizing conception of childhood to the upper bourgeoisie and nobility in sixteenth- and seventeenth-century Europe, whose views gradually diffused downward through the social classes.19 Historians associate changes in attitudes toward children to a decline in infant mortality, increased literacy, and economic shifts from farm and home-shops to other work environments.20

By the early nineteenth century, the newer view of childhood began to alter child-rearing practices in America.21 By the end of the century, urban upper- and middle-class parents invested greater efforts to prepare their children for adulthood and to restrict their autonomous departures from home. They envisioned children as vulnerable, dependent, and innocent, who required special protection and supervision.22 Decreased fertility, increased life expectancy, and expanded educational opportunities enabled more privileged women to assume greater roles in improving the social, developmental, and material conditions under which their own and other people’s children grew up.23 They expanded their domestic roles as raisers of children and caretakers into the public realm. Child-saving women supported social and legal reforms to promote children’s development and welfare—juvenile courts, child welfare, child labor, compulsory school attendance, kindergarten, and other endeavors.24 They imposed their vision of childhood innocence and vulnerability on those who did not share it.25

Progressives, the State, and the Child

Progressive movements emerged at the end of the nineteenth century in response to the structural changes and dislocations associated with urbanization and industrialization. Progressive reformers shared middle- to upper-class backgrounds, higher levels of education, belief in the use of science and knowledge to manage change, and confidence in the social order within which they flourished. Progressives included diverse ideologies and political affiliations, reflected different temperaments and styles, and addressed myriad social problems associated with the industrial city: poverty, population density, disorder and crime, public health, and inadequate social services. The growing cities proved especially conducive to juvenile mischief and crime.26 Progressives responded to monopoly economic power with corporate regulation and anti-trust laws; to political corruption with good government, civil service, and electoral reforms; to inadequate sanitation, poor housing, and tainted food with public health efforts, building codes, and food and drug regulation; and to crime and disorder with criminal and juvenile justice reforms.27

Progressive reformers embraced many child-saving programs to address threats to children’s development: inadequate housing, dysfunctional and broken families, dependency and neglect, poverty, crime and delinquency, and economic exploitation. The emergence of new disciplines and professions like medicine, psychology, and social work at the end of the nineteenth century enabled Progressives to invoke science, rationality, and technical expertise to legitimate their agenda and expand their authority.28 They believed that experts and professionals could and should solve social problems.29

Progressives used the state to inculcate their values through a process of democratization and citizen building. They believed that “[t]he state was to be an agent of reform as well as of repression, of care as well as control, of welfare as well as punishment.”30 They believed that children were more malleable than adults and would internalize their norms and expectations.31 “The most distinguishing characteristic of Progressivism was its fundamental trust in the power of the state to do good. The state...