Juvenile (In)Justice: The American Tradition of Abusing Children Because We Have Not Confronted Our Collective Racism and Classism

By Natasha Baker, NLC Silicon Valley

Part nine of The New Leader series The Arc of Justice: Examining the Failures of the Criminal Justice System and the Hope of Progressive Reforms

If the motivation for incarcerating so many juveniles is not grounded in a real threat, was it always about race, and does it continue to be about race, and do the rest of us go along with ‘dog whistle politics’ because our implicit biases prevent us from seeing the truth?[1]

The frame with which the American juvenile justice system is often discussed is one of benevolence. The system is meant to rehabilitate children, i.e. to fix broken kids and help them get back on track. Juvenile court hearings are supposed to be about “a fatherly judge touch[ing] the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition, and . . . in extreme situations, benevolent and wise institutions of the State provid[ing] guidance and help ‘to save him from a downward career.’” It’s about treating kids differently because kids are different and they need help.

Do not be fooled.

The American juvenile justice system is yet another manifestation of contempt for poverty and people of color. It is yet another sphere of American society that perpetuates racism and classism through “othering”: others are punished, our own are taken care of.

The first iteration of the juvenile justice system came as a result of the Industrial Revolution. Many families flocked to the cities in search of work, but the difficulty of making ends meet forced many children into begging and stealing. Exploitation of child labor was normal. In response to this situation, New York opened the House of Refuge in 1825. The idea was that institutionalizing children was the best way to “avoid cruel treatment, idleness, and inadequate moral and educational development in the youth.” Black children were excluded.

Only a decade later did these institutions begin to offer separate sections for black children. And from the very start, the same problems we see today of adultification (whereby white people perceive black children to be older than they really are) and disparate treatment (whereby youth of color receive harsher treatment and longer sentences than white youth for the same offenses) were the norm. Opportunities afforded to white youth were simply not offered to black youth. Black youth were not taught to succeed.

Around the same time, the Supreme Court decided a case called Ex Parte Crouse. This case created the doctrine of parens patriae, which basically allows the state to take over as a child’s parent if the court believes a child to be misbehaving and believes the parents incapable of controlling the child. From the very start, poor, indigenous, and non-white parents were disproportionately targeted and their children forced to assimilate into white culture.

Between then and now, the juvenile justice system has not changed much. Some key procedural protections have been won because of Supreme Court cases such as In Re Gault, but the disparate and destructive treatment of poor children and children of color remains the most common feature.

Juvenile justice system involvement is overwhelmingly a negative experience for youth. Kids naturally age out of delinquency; system involvement disrupts that normal adolescent development. It disrupts and adds chaos to their education, their home life, and their bonds with whatever positive role models they may have. It traps youth and their families in poverty through draconian fines and fees. Having a juvenile record can haunt youth forever, limiting their educational, housing, and employment opportunities in such dramatic ways that they are never able to get ahead. It dramatically increases their risk of poor health outcomes, even early death. The majority of youth entering the system have experienced trauma. One of the key predictors of juvenile justice involvement for girls is prior sexual abuse. System involvement exacerbates that trauma, rather than heal it.

Why have we accepted a system that does so much harm to our kids? Because we don’t see them as our kids. As long as politicians call them “criminals,” the public has been ok with ever-increasing punishment, even if “criminals” is simply dog-whistle politics for “blacks,” “Latinos,” “the poor,” and anyone else the powerful do not like and prefer to scapegoat while they line their own pockets. Juvenile Court Judge and Reformer Steve Teske recently reviewed a new book by Professor Barry C. Feld on the juvenile justice system called The Evolution of the Juvenile Court: Race, Politics, and the Criminalizing of Juvenile Justice. In his review, Judge Teske states:

[C]ode words exploited latent racial anxieties to garner support for [conservative politicians’] ‘law and order’ agenda by blaming individual black people for making poor choices without any consideration that choices are influenced by conditions affecting the person. What I glean from Feld’s assessment is that it doesn’t serve the interest of conservative politicians to re-examine the policies that create the structural conditions that produce poverty and crime: To do so would require a shift in social and economic policies in America that are contrary to their political interests. These politicians would rather project the causes of crime on the personal choices of individual blacks than address the real causes. Those voters harboring racial animosities were the most excitable and feared the worst of the black ‘superpredator’ kids when they heard politicians utter code words for blacks like ‘welfare queen,’ ‘entitlement society’ and more.

The structure of the American juvenile justice system was a conscious choice made over and over again by system actors (both conservatives and liberals) and a complicit public to privilege some children over others. It is widely known that failure to achieve important early academic milestones like literacy greatly increases the risk of future justice-system involvement, and yet public education continues to lag for youth of color and schools remain heavily segregated over half a century after Brown v. Board of Education. The juvenile justice system is merely one component of a large web of decisions and structures that have consistently deprived poor children and children of color of adequate education, housing, nutrition, medical care, and every other tool necessary to succeed in life. And when they inevitably fail because of such chronic deprivation, their failures have been used as after-the-fact proof that they really are “superpredators,” “animals,” and “monsters” who deserve to be caged.

This very logic was on display recently by the nation’s highest juvenile justice administrator, Caren Harp, head of the federal Office of Juvenile Justice and Delinquency Prevention (a part of the Department of Justice). At a recent juvenile justice conference, she shared that addressing disproportionate minority contact (DMC — the reality that youth of color are disproportionately represented at every stage of the juvenile justice system) and protecting public safety are goals that must be “balanced,” rather than recognizing how intertwined they are. Disproportionate minority contact is not the result of black kids committing more crimes than white kids; it is about system actors responding differently to the same behavior because of the race of the child. Public safety requires eliminating racial disparities in the juvenile justice system because putting kids in the system who shouldn’t be there makes kids more likely to commit crimes in the future.

The uncomfortable truth is that the heart of the juvenile justice system has never been about public safety. If it were, we would do what works: not criminalize normal adolescent behavior nor addiction, invest heavily in education starting in pre-school, invest heavily in mental health services so that young people can process trauma they have experienced, have universal school meals so that no child is too hungry to learn, invest in adequate housing for all, have universal health care, promote integrated neighborhoods, and have all of the various social safety net factors that drive people into the middle class and make us safer.

Instead, we as a society have accepted a certain level of crime because we don’t actually see poor kids and kids of color as deserving of a good life. This core barrier to reforming the juvenile justice system is summarized by Judge Teske in his review of Professor Feld’s book on the juvenile justice system:

‘Harsh as it may sound, child poverty is the United States’ public policy . . . Even though white children comprise the largest number of children in poverty and would benefit most from programs to alleviate it, too many white people and public officials resist structural reforms to aid the poor because blacks and other children of color would benefit disproportionately.’ In essence, [Professor Feld] says that we fail the ‘my child test,’ which occurs when we view other people’s kids, especially those kids of color, with ‘suspicion, hostility, and as potential threats to their own children’s well-being.’

The national outrage over the caging of children along the border is heartening. However, Americans should understand that, while Trump’s decision to separate children and parents at the border and cage them is evil, it is, unfortunately, another iteration of the centuries-long white supremacy campaign to “other” non-white youth, to “other” poor youth, as being inherently worth less and more criminally inclined — and therefore justify locking them up. On any given day, around 50,000 children are away from their families and in detention.

So given all of this, what is an ordinary member of the public to do? What can you, the reader, do right now?

1. Find out if there is a juvenile prison near you and demand it be closed. Prisons are no place for kids. They are dangerous, ineffective, unnecessary, wasteful and inadequate. To see them for yourself, check out the photography of activist Richard Ross, who has documented the abuses of juvenile prisons across the country. Repurposing prisons for positive use is possible, and communities across the country have already begun doing so.

2. Find out if your school or juvenile detention facilities use shackles on kids — that means handcuffs, belly chains, leg irons, and/or restraining chairs — and demand they stop. The harms of shackling are extensive and shackles are not needed to keep schools and courtrooms safe. Use the hashtag #NoChildInChains to spread awareness.

3. Call your federal representatives and ask them to pass the Juvenile Justice and Delinquency Prevention Act (JJDPA). This is a key piece of legislation that will improve the juvenile justice system across the country. This bill is close to becoming law, but pressure is needed from the public to keep this on elected officials’ radar screens so that it actually gets passed. Tell them that #KidsCantWait and #JJDPAMatters.

4. Find out if your state tries juveniles as adults and demand an end to this practice. As a result of the racist “superpredator” myth in the 1990s, many states began making it easier to try youth as adults and to limit the age eligibility for juvenile court. There are campaigns across the country to raise the age of eligibility for the juvenile justice system, which is one way to help keep kids out of the adult system. For however awful the juvenile system is (and it is awful), the adult system is worse for kids.

5. Vote in November for candidates who believe in reforming the juvenile justice system. Help register others to vote. Help others get IDs so that they can vote. Volunteer on a progressive campaign. Run for school board. Volunteer as a tutor or mentor. Get involved civically in your community.

The juvenile justice system is a legacy of deep historical wounds and realities that we have not adequately confronted and addressed. To heal those wounds is painful because it requires confronting our collective racism and classism, but such confrontation is surely less painful than what the children in our juvenile justice system have suffered. It is 2018, and it is as good a time as ever to start the healing process.

[1]Juvenile Court Judge and Reformer Steve Teske, in reviewing Professor Barry C. Feld’s book The Evolution of the Juvenile Court: Race, Politics, and the Criminalizing of Juvenile Justice.

Natasha Baker is a Skadden Legal Fellow at Open City Advocates, where she provides post-disposition representation to youth in the juvenile justice system in Washington, DC. She is a 2012 NLC-Silicon Valley Fellow and a Senior Fellow on the Commission on Criminal Justice of the Millennial Policy Initiative. She can be reached at natasha@opencityadvocates.org and on Twitter @natashatbaker. All views expressed in this article are her own.